A year and a half ago, I published a book, Principles of a Free Society, in which I defined civil disobedience as open, non-violent, principled defiance of a law which one wishes to see changed; argued that most illegal immigration does not qualify as civil disobedience because it is not open; and added that: “If illegal immigration in the United States does not yet constitute a mass civil disobedience movement, it is not far from it… A satyagraha approach [satyagraha, meaning ‘clinging to the truth,’ is Gandhi’s term for civil disobedience] might involve illegal immigrants openly advertising their status in order to court arrest and deportation.” (Principles of a Free Society, p. 129)
These words proved prescient. Several months later, the journalist Jose Antonio Vargas published a four-page story in the New York Times in which he outed himself as an illegal immigrant. He was born in the Philippines, and came to the United States in 1993, at the age of 12, to live with his grandparents in California. His mother “wanted to give [him] a better life.” He “quickly grew to love [his] new home, family, and culture.”
A few years later, he got the first intimation of his status:
One day when I was 16, I rode my bike to the nearby D.M.V. office to get my driver’s permit. Some of my friends already had their licenses, so I figured it was time. But when I handed the clerk my green card as proof of U.S. residency, she flipped it around, examining it. “This is fake,” she whispered. “Don’t come back here again.”
After this:
I decided then that I could never give anyone reason to doubt I was an American. I convinced myself that if I worked enough, if I achieved enough, I would be rewarded with citizenship. I felt I could earn it.
Vargas writes in an amiable tone, free of indignation, not even reproachful, as he describes what is in most respects an exemplary American life, but with a Kafkaesque sub-plot of occasional, menacing encounters with the shadow of a capricious but implacable state. He explains how he got a fake Social Security card to get a series of student jobs and then his first newspaper job, and checked the citizenship box on federal I-9 tax forms. He has qualms about this:
This deceit never got easier. The more I did it, the more I felt like an impostor, the more guilt I carried—and the more I worried that I would get caught. But I kept doing it. I needed to live and survive on my own, and I decided this was the way.
Scenes that epitomize American normalcy become more poignant as they are interrupted by the specter of illegality:
After a choir rehearsal during my junior year, Jill Denny, the choir director, told me she was considering a Japan trip for our singing group. I told her I couldn’t afford it, but she said we’d figure out a way. I hesitated, and then decided to tell her the truth. “It’s not really the money,” I remember saying. “I don’t have the right passport.” When she assured me we’d get the proper documents, I finally told her. “I can’t get the right passport,» I said. «I’m not supposed to be here.”
Vargas could not apply for state and federal aid to go to college, but his high school principal, who was even willing to adopt him to resolve the immigration problem until a lawyer said that would not help, found him a scholarship. He was beginning a career in journalism, but had to give up a crucial internship for lack of the right papers. At that point, his scholarship sponsor offered to pay for an immigration lawyer, whom Vargas met. Result:
The meeting left me crushed. My only solution, the lawyer said, was to go back to the Philippines and accept a 10-year ban before I could apply to return legally.
The lawyer’s devastating advice contrasts sharply with that of friends—“Compartmentalize it, keep going,” says the principal’s husband; “When you’ve done enough, we’ll tell Don and Len [the bosses],” says a colleague—who seemed to assume there was some way out. Vargas got a Washington Post internship the next summer using a driver’s license obtained in Oregon with the help of a friend’s father who lived there.
It worked. My license, issued in 2003, was set to expire eight years later, on my 30th birthday, on Feb. 3, 2011 … It seemed like all the time in the world.
Years of growing professional success follow, but the shadow lingers. A moment of triumph is poisoned:
In April 2008, I was part of a Post team that won a Pulitzer Prize for the paper’s coverage of the Virginia Tech shootings a year earlier. Lolo [Vargas’s grandfather] died a year earlier, so it was Lola [grandmother] who called me on the day of the announcement. The first thing she said was, “Anong mangyayari kung malaman ng mga tao?”
What will happen if people find out?
Three years of haunted success later, Vargas arrives at a decision. He does not want:
More years of fear, of lying to people I respect and institutions that trusted me, of running away from who I am.
I’m done running. I’m exhausted. I don’t want that life anymore.
So I’ve decided to come forward, own up to what I’ve done, and tell my story to the best of my recollection. I’ve reached out to former bosses¬ and employers and apologized for misleading them — a mix of humiliation and liberation coming with each disclosure. All the people mentioned in this article gave me permission to use their names. I’ve also talked to family and friends about my situation and am working with legal counsel to review my options. I don’t know what the consequences will be of telling my story.
I do know that I am grateful to my grandparents, my Lolo and Lola, for giving me the chance for a better life. I’m also grateful to my other family — the support network I found here in America — for encouraging me to pursue my dreams.
It’s been almost 18 years since I’ve seen my mother. Early on, I was mad at her for putting me in this position, and then mad at myself for being angry and ungrateful. By the time I got to college, we rarely spoke by phone. It became too painful; after a while it was easier to just send money to help support her and my two half-siblings. My sister, almost 2 years old when I left, is almost 20 now. I’ve never met my 14-year-old brother. I would love to see them.
Not long ago, I called my mother. I wanted to fill the gaps in my memory about that August morning so many years ago. We had never discussed it. Part of me wanted to shove the memory aside, but to write this article and face the facts of my life, I needed more details. Did I cry? Did she? Did we kiss goodbye?
My mother told me I was excited about meeting a stewardess, about getting on a plane. She also reminded me of the one piece of advice she gave me for blending in: If anyone asked why I was coming to America, I should say I was going to Disneyland.
One year later, Vargas has become the leader of an organization called Define American and an activist traveling the country agitating for immigration reform. He continued his story in the recent cover story of Time, “Not Legal, Not Leaving.” He has not been deported, though he did have a Washington (state) driver’s license revoked for not actually living in Washington. He has become “a walking conversation that most people are uncomfortable having.” “Why haven’t you gotten deported?” he is often asked, and even more revealingly:
“Why don’t you become legal?” asked 79-year-old William Oglesby of Iowa City, Iowa…
“I haven’t become legal,” I told William, “because there’s no way for me to become legal, sir.”
Sharon [his wife], jumped in. “You can’t get a green card?”
“No, ma’am,” I said. “There’s no process for me.” Of all the questions I’ve been asked in the past year, “Why don’t you become legal?” is probably the most exasperating. But it speaks to how unfamiliar most Americans are with how the immigration process works.
He has become part of a movement:
We are living in the golden age of coming out. There are no overall numbers on this, but each day I encounter at least five more openly undocumented people. As a group and as individuals, we are putting faces and names and stories on an issue that is often treated as an abstraction.
Bringing Human Dignity into the Light of Day
By coming out publicly, Jose Antonio Vargas and many others have transformed the lawbreaking of illegal immigration into something heroic—civil disobedience. They have become, to adapt an exquisite phrase from writer David Bentley Hart, “a face for the faceless.”
By coming out publicly, Jose Antonio Vargas and many others have transformed the lawbreaking of illegal immigration into something heroic—civil disobedience.
Hart, describing the impact of Christianity on the culture of the late Roman Empire, writes that “to the literate classes of late antiquity … a rustic could not possibly have been a worthy object of a well-bred man’s sympathy,” and that the story, in the Gospels, of Peter weeping after he denied Christ on the eve of the Crucifixion, would “likely have seemed like an aesthetic mistake.” By contrast, in the Gospels and other Christian texts, “we see something beginning to emerge from darkness into full visibility, arguably for the first time in history: the human person as such, invested with an intrinsic and inviolable dignity, and possessed of an infinite value.” (Hart, p. 167)
To feel human sympathy for someone makes it much harder to abuse, exploit, or brutalize them, or in general, to do unto them as one would not have others do unto oneself. Over time, though sometimes with terrible tardiness, this new appreciation of human dignity has altered man and society, making charity more urgent and beautiful, making slavery first anomalous and then untenable.
Not that, even two millennia later, individuals and societies have escaped the tendency to ignore and offend the human dignity of their fellows. But culture, religious and secular, perennially reminds us that it is there. Vargas is a case in point. His writing feels ordinary rather than brilliant. He seems like the guy next door: we know him, we like him, we root for him. By contrast, the law, we do not know. Sometimes, the law retains a sinisterly impersonal facelessness, as is highlighted by the end of Vargas’s story:
As for me, what happens next isn’t just a philosophical question. I spend every day wondering what, if anything, the government plans to do with me. After months of waiting for something to happen, I decided that I would confront immigration officials myself. Since I live in New York City, I called the local ICE [Immigration and Customs Enforcement] office. The phone operators…were taken aback when I explained the reason for my call. Finally I was connected to an ICE officer.
“Are you planning on deporting me?” I asked.
I quickly found out that even though I publicly came out about my undocumented status, I still do not exist in the eyes of ICE. Like most undocumented immigrants, I’ve never been arrested. Therefore, I’ve never been in contact with ICE.
“After checking the appropriate ICE databases, the agency has no records of ever encountering Mr. Vargas,” Luis Martinez, a spokesman for the ICE office in New York, wrote me in an e-mail.
I then contacted the ICE headquarters in Washington. I hoped to get some insight into my status and that of all the others who are coming out. How does ICE view these cases? Can publicly revealing undocumented status trigger deportation proceedings, and if so, how is that decided? Is ICE planning to seek my deportation?
“We do not comment on specific cases,” is all I was told.
But just after that Time story came out, Vargas got an answer of sorts from the very top, when Barack Obama announced a new directive in immigration enforcement:
Effective immediately, the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.
While the legal and implementation issues of this will presumably take time to sort out, this directive appears to protect many people like Vargas (although not Vargas himself) from deportation. Importantly, it seems clear that publicly revealing undocumented status will not, at least for eligible individuals, trigger deportation proceedings. On the contrary, it will allow them to apply for work authorization—for now. There was more good news for immigrants a few days later, when the Supreme Court overturned crucial provisions of an anti-immigration law in Arizona.
Interestingly, Obama’s speech contained what sounded like a shout-out to Vargas and others who have come out:
And I believe that it’s the right thing to do because I’ve been with groups of young people who work so hard and speak with so much heart about what’s best in America, even though I knew some of them must have lived under the fear of deportation. I know some have come forward at great risks to themselves and their futures in hopes it would spur the rest of us to live up to our own most cherished values. And I’ve seen the stories of Americans in schools and churches and communities across the country who stood up for them and rallied behind them, and pushed us to give them a better path and freedom from fear, because we are a better nation than one that expels innocent young kids. (emphasis added)
As long as illegal immigrants remain anonymous, they remain an abstraction, even if roughly one in 30 people is one of them. As we see their faces and hear their words, we recognize their human dignity, and the duty to treat them as we would like to be treated.
The Ethics and Impact of Civil Disobedience
President Obama is not the first to be ravished by the moral beauty of civil disobedience. Many ancient philosophical schools, from stoics to skeptics to Platonists, revered Socrates for his brave defiance of an Athenian jury that put him to death for refusing to abandon his custom of subversive moral inquiry in pursuit of truth, which had irritated Athens’s complacent bourgeoisie.
The absence of a way for him to become legal seems to lack the consent of the governed.
Christians have long revered the prophet Daniel, as well as thousands of martyrs, who openly and bravely defied the commands of secular rulers, risking and often losing their lives, and whose heroic example catalyzed the conversion of the Roman Empire.
More recently, civil disobedience by Rosa Parks (sitting in the front of the bus), Martin Luther King (protest marches), and many others brought about the purge from American society of the long-standing blight of institutional racism, while civil disobedience (a strike) by the Solidarity movement in Poland helped bring about the fall of communism.
Successful civil disobedience movements are among the most exhilarating, edifying, and transformative chapters in history. We may be witnessing the beginnings of one now. If, as Obama’s speech suggests, Vargas and other illegal immigrants who have outed themselves recently inspired the administration’s new policy, they have had an impact out of all proportion to their numbers or position. This is the typical effect of civil disobedience, from the early Christian martyrs to Gandhi to Rosa Parks.
Rule of Law Turned on Its Head
In some quarters, Obama’s announcement has been greeted with outrage. Thus, Andrew McCarthy writes:
There is no conceivable argument that the federal immigration laws are constitutionally suspect. Obama simply rejects them as a matter of policy preference. That itself is a blatant violation of his constitutional oath…
Obama is not merely failing to enforce the immigration laws. He is destroying the system on which our liberty depends, a system he swore to safeguard…
The president says the young illegal aliens he has in mind are “Americans” except on paper. But who is Obama to say what an American is?…
Our social compact as a body politic demands that policy objectives be pursued within a system of divided powers in which the prerogatives of the president and of the federal government are strictly limited. Obama rejects this bedrock principle. Therefore, we must reject him.
If [Obama] is not removed from office—and if, while he retains office, politically accountable actors at the federal and state level continue their feckless failure to use their constitutional muscle to block him and rein him in—this will no longer be America. Not even on paper.
This will no longer be America? France has had revolution after revolution and remained France; Rome turned from kingdom to republic to empire but remained Rome; England had strong kings and then eviscerated them in favor of parliamentary oligarchy and then democratized and gained and lost a couple of empires but all the while remained England; but America is so fragile that one arguably unconstitutional act by one president and, poof, it’s gone?
Law in Vargas’s life story has been the opposite of law.
There is a logic within this argument, however, that is important to understand. Immigration restrictionism, carried to its logical extreme, must strip away from the concept of national identity everything that makes it human—the jokes, the food and fun and faith, the affection for places and festivals, peculiarities of speech and manners, the distinctive virtues and loyalties, the community and the economy, the custom and tradition—leaving nothing but a legal construct, the paper.
The case of Jose Antonio Vargas drives home the strangeness of the “rule of law”-based claims that critics of Obama’s semi-amnesty are making. For 15 years, Vargas was living in the United States in vague fear of having his life totally disrupted by deportation, for something he did before the age of accountability, without knowing it was illegal. That situation, apparently, was consistent with the rule of law.
Then, for a year, Vargas had made his status public, was writing about it in major national publications, traveling the country, meeting with people, organizing a political movement—but was not deported. Was that situation, too, consistent with the rule of law? If not, what exactly is the government supposed to do about it? Search the media regularly for confessions of illegal immigrant status?
Vargas calls the offices of ICE and tells them he is an illegal immigrant and asks them whether he will be deported. Answer: “We do not comment on specific cases.” Is it consistent with the rule of law if they answer evasively, but not if they give a straightforward “no?”
He has become ‘a walking conversation that most people are uncomfortable having.’
What we see here is the concept of rule of law, turned on its head. As Friedrich Hayek understood, law should be embedded in tradition and the customs of the people, and thereby able to create security and certainty, enabling people to plan for the future. Everything about Vargas’s life story shows that the American people, when confronted with the facts, accept him, accept his presence. Many take it for granted that there is a path to legal permanent residence for him. They ask him why he hasn’t become legal. The absence of a way for him to become legal seems to lack the consent of the governed.
Law in Vargas’s life story has been the opposite of law: Arbitrary, random, a source of insecurity, faceless and unaccountable, making long-term planning impossible. Obama’s semi-amnesty makes the law a little bit more lawlike: More predictable, more transparent, more consistent with the customs and traditions of the people. Critics of the move are demanding, in the name of the rule of law, not that the law be enforced to the letter in all cases, but that it remain arbitrary and unpredictable, that it keep people guessing.
When law becomes unmoored from justice, it begins to cease to be law. When the law prohibits what is not in any way morally wrong, what on the contrary may be morally good or even obligatory—Jose Antonio Vargas’s mother trying to get a better life for her son, a father trying to support his family in the only way he can, a person fleeing political or religious persecution for a place where he or she can live in truth—situations will arise in which conscience allows or requires people to disobey it, and the alliance between the coercive power of the state and the moral community of the people, in which the legitimacy of the law consists, is first strained, and then severed.
The Politics and the Pulpit
Successful civil disobedience movements are among the most exhilarating, edifying, and transformative chapters in history. We may be witnessing the beginnings of one now.
The most obvious political benefit to Obama from his announcement comes from mobilizing Hispanics. But there are other potential benefits to the move as well. While Obama’s relationship with the business community has been strained, he might win some new allies in business, which wants workers and has long supported immigration reform. Polls show support for Obama’s new immigration stance.
Obama might also make political progress in churches. Churchgoers are among the Republican Party’s most stalwart supporters, and Obama has alienated many of them with his support for gay marriage and his assault on religious freedom in the form of a contraception coverage mandate under the healthcare law.
On immigration, though, the churches are decidedly to the left of center. For example, the U.S. Conference of Catholic Bishops strongly supports comprehensive immigration reform, as do evangelicals.
In taking such stances, church leaders often act contrary to the wishes of a lot of their members. But it is not, in the end, to their members that church leaders believe themselves to be primarily answerable.
In Mosaic law, the resident alien is mentioned again and again, alongside orphans and widows, as the object of God’s particular concern:
Do not mistreat or oppress a foreigner, for you were foreigners in Egypt. (Exodus 22:21)
When a foreigner resides among you in your land, do not mistreat them. (Leviticus 19:33)
Cursed is anyone who withholds justice from the foreigner, the fatherless or the widow. (Deuteronomy 27:19)
Do not deprive the foreigner or the fatherless of justice, or take the cloak of the widow as a pledge. (Deuteronomy 24:17)
[God] defends the cause of the fatherless and the widow, and loves the foreigner residing among you, giving them food and clothing. (Deuteronomy 10:18)
And in the New Testament, Jesus prophecies that at the Last Judgment:
Then the King will say to those on His right hand, “Come, you blessed of My Father, inherit the kingdom prepared for you from the foundation of the world, for I was hungry and you gave Me food, I was thirsty and you gave Me drink, I was a stranger and you took Me in, naked and you clothed Me, I was sick and you visited Me, I was in prison and you came to Me… inasmuch as you did it to one of the least of these My brethren, you did it to Me” …(emphasis added)
Then he will also say to those on the left hand, “Depart from Me, you cursed, into the everlasting fire prepared for the devil and his angels: for I was hungry and you gave Me no food, I was thirsty and you gave Me no drink, I was a stranger and you did not take Me in, naked and you did not clothe Me, sick and in prison and you did not visit Me … inasmuch as you did not do it to one of the least of these you did not do it to Me.” (Matthew 25:31-45)
The Nature of Well-Designed Laws
As welcome as the new forbearance on immigration is, it must tend to heighten the contradictions in existing immigration law. For as Mickey Kaus, a prominent foe of immigration, observes, there are:
…unwanted long-term side effects of encouraging future illegal immigration from parents now living in other countries (who’d understandably like their kids to be made Americans, too), which would set the stage for another amnesty, which in turn would build up a constituency for the next amnesty in a cycle that doesn’t seem to have any end point.
Exactly. Well-designed laws need to be more or less incentive-compatible; that is, they need generally to be in people’s interest to obey them. The appalling human costs that illegality imposes on immigrants—not knowing whom to trust, the difficulty of planning for the future, trouble getting driver’s licenses and jobs, the threat of sudden separation from everything one has known—make immigration restrictions close to being incentive-compatible, but they fall far short. The incentives for people in poor countries, or living under tyranny—or people who just really like American culture—to come to live in wealthy, free America are just too strong.
Immigration restrictionism, carried to its logical extreme, must strip away from the concept of national identity everything that makes it human.
Certainly, enforcement can have some effect. The federal government has intensified its efforts to control the border in recent years, and net illegal immigration from Mexico is now thought to have fallen to zero. That’s net immigration, though—some are still coming, as others go back. Meanwhile, there are still an estimated 11 million or so illegal immigrants living in the United States. To regularize the status of these will attract others. Slower illegal immigration also reflects the weakness of the economy and is likely to reverse when the economy recovers. To really make illegal immigration a negligible phenomenon, we would need to be far more ruthless, say by conducting routine pogroms against illegal immigrants. One hopes such measures will remain politically off limits.
On the other hand, we could change the laws so that they conformed to the standard of justice that the people who talk to Vargas assume that our laws must conform to already (this being America, where one expects a minimum of common sense and justice to be practiced). We could provide a path to legal citizenship for those who grew up here and know no other home. But then the incentives for more illegal immigrants to come will be greatly strengthened. We could try to beef up enforcement still more, but there are ladders, tunnels, boats, and shipping containers. Our borders, by land and sea, are very long. And a parent’s desire to give a better life to her child is a very strong motive.
Obama has now given foreign-born de facto Americans a shaky legal foothold in the country. I have no evidence, but it stands to reason that foreigners seeking a better life for their young children will have noticed that. The U.S. economy may finally achieve a strong turnaround any day now, making America a magnet for illegal immigrants again, and leading eventually to a new generation of kids growing up in limbo. Jose Antonio Vargas and his movement have a lot of work to do.
A Face for the Faceless — The American Magazine.