David R. Henderson  

Law Professor Glenn Reynolds Doesn't Understand U.S. Law

Macro events (in big economies... Case Against Education ...

Byron York, in "Crime and immigration: What's in the Dream Act," Washington Examiner, September 7, writes:

Commentary on the DACA controversy frequently notes that the nation's nearly 700,000 so-called Dreamers are a law-abiding group. But a new bill to give DACA recipients full legal status, sponsored by Republican Sens. Lindsey Graham and Jeff Flake and Democratic Sens. Richard Durbin and Chuck Schumer, would allow newly legalized Dreamers to have many run-ins with the law -- arrests, charges, convictions -- and still receive benefits.

What follows is not a comment on the merits of that bill.

After quoting a key part of the bill, University of Tennessee law professor Glenn Reynolds, a thinker whose writing I often respect, comments:

If only they were as lenient with citizens who break the law.

His ignorance of the law is stunning. Not only is the government "as lenient" with U.S. citizens who break the law, but also it is way more lenient. Under the bill that York and Reynolds discusses, for example, someone who rapes or murders would get tossed out of the country. Is Reynolds aware what would happen to a U.S.-born citizen who raped or murdered? Would he get deported?

Answer: No.

Although I did not read all 49 comments on his post that have appeared so far, I did read about 20. Not one of the 20 noted this huge error.

One of Glenn's commenters writes "If I were a legal immigrant, I would be furious." It's clear from context that she would be furious at the proposed law. I'm a legal immigrant; I'm not furious.

COMMENTS (17 to date)
Leo writes:

Maybe i just haven't had my morning coffee yet, but i don't understand either of your points.

Is Glenn trying to make a point about the criminal justice system's unfairness and cruelty to poor US citizens accused of minor crimes? While in my view its teatment of noncitizens and poor citizens alike is abhorrent, the threat of deportation makes its treatment of noncitizens less lenient.

And David, do you think an noncitizens who murder or rape simply get deported? They get sent to prison just like citizens who are convicted of those crimes.

David R. Henderson writes:

Is Glenn trying to make a point about the criminal justice system's unfairness and cruelty to poor US citizens accused of minor crimes?
While in my view its teatment of noncitizens and poor citizens alike is abhorrent, the threat of deportation makes its treatment of noncitizens less lenient.
Exactly, which is the opposite of what he said.
And David, do you think an noncitizens who murder or rape simply get deported?
No. Not simply.
They get sent to prison just like citizens who are convicted of those crimes.
Exactly. And then they’re deported.

EB writes:

David, I'm confused by your reply to Leo. Anyway to understand why Law Professor Glenn Reynolds is right, I suggest to read first chapters 8 and 9 of this textbook


and then this article by Sociology Professor Tanya Golash-Boza


More important, Glenn has been supporting what Jerry Pournelle nicely summarized as

"The news is full of the Dreamers. The Constitution says the President must take care to see that the laws are faithfully enforced. Mr. Trump didn’t want to deport the “Dreamers”, particularly those who have integrated into the society, but the law gives him no leeway, and the Presidential Order Obama signed giving them amnesty is unconstitutional. He solved that dilemma by giving it back to Congress who created it. We’ll now see what happens."
Note: Jerry passed away yesterday.

Today Jeff Jacoby fully explains Jerry's summary in


David R Henderson writes:

I checked the links.
The first one is to a book, not to a page in a book. I’m not going to buy a whole book when you could, if you wished, say what part of the book says I’m wrong.
The second link is to an article I did read. It doesn’t contradict my point.
The one by Jeff Jacoby also doesn’t contradict my point.

Leo writes:

David, thanks for taking the time to reply. Perhaps I'm just too hung up on your specific examples of rape and murder; the sentences (and social stigmata) associated with those crimes seem to make deportation pale in comparison. But I guess extra punishment is still extra punishment, even if it seems relatively minor.

David R Henderson writes:

You’re welcome.
When I became a resident alien (Nanu, Nanu) in 1977, I was given a list of crimes that, if I committed, would get me tossed. The list was long and included things way less serious than murder and rape. I don’t think it has changed that much.

EB writes:


To simplify let us say that today there are three categories: legal dreamers, other legal immigrants, and Americans. Now the draft law proposes to relax the crime-criteria to become a legal dreamer. According to York (citing Vaughan), that relaxation implies standards more lenient than the ones used for other legal immigration categories (I have not checked this claim). According to Reynolds, the new standards would mean a disposition to be lenient to dreamers who have broken the law relative to Americans that have broken the law: whereas access to some government benefits would become easier for dreamers, the proposed law does not include any relaxation for Americans to access any government benefit (also Glenn may think that recently Americans have seen their access to some government benefits cut because of tighter crime-criteria) . For example, the proposed law would relax standards by ignoring “offenses for which an essential element is the alien’s immigration status”, including instances that imply fraud, but Americans are not getting fraud-relaxation for any government program that may benefit them.

Since Americans cannot be deported or removed, you argue that dreamers that broke the law still are worse off than Americans. But it is not relevant to the discussion of the proposed law because before and after a new law, legal dreamers convicted for rape are to be deported whereas Americans convicted for the same crime will never be deported. Glenn is not referring to deportation most likely because for him, as a lawyer, deportation is not punishment (as argued by Tanya is her article —she acknowledges that the deported dreamer would take it as punishment but that’s his problem— and as it is explained in any textbook on immigration law). I have not checked but I assume that such a difference has been part of the legal systems of many countries for years.

Thaomas writes:

@ EB,

Yes, President Trump DID have a choice about revoking DACA. There are probably millions of laws that are not enforced to the maximum extent they could be. That kind of non-enforcement is not unconstitutional. Not deporting "Dreamers" is one of the millions of laws. It just happens to be a set of laws that are especially popular with a segment of Mr Trumps supporters. [I don't think its cost effective to deport anyone who has not committed a pretty serious crime or has feloniously obtained welfare benefits.] And if we are not going to deport someone, why not assure them that having a job will not put them in jeopardy of deportation or their employer of some sanction?

Anyway, hopefully Congress will nullify President Trump's threat of deportation by legalizing the status of the "Dreamers" and many other productive immigrants without current valid visas.

EB writes:

Thaomas, DACA is about admission and in particular about the benefits of admission; it's not about deportation. A President may to some extent choose how to enforce a law but cannot grant benefits that are not in the law.

Hope you feel fine about your preferences but DACA is not about how Dreamers and others feel.

Hazel Meade writes:

The idea that deportation isn't punishment, is really quite illogial. It is effectively equivalent to banishment, which has been used as punishment for millenia.

Deportation separates people from their family and friends, permanently, unless those people also go to to the foreign country to visit, since the deported person will never be granted a visa to visit. It uproots someone from an entire life they have been living, possibly in the middle of a career. Possibly to a place where they don't speak the language.
It clearly and obviously imposes a variety of harms, both personal and economic.

David R Henderson writes:

You’re confusing what is really a simple point. Notice that I never referred to deportation as punishment.
The issue is whether the U.S. government, under the proposed law, would treat some immigrants more leniently than it treats U.S. citizens. Because deportation awaits those immigrants for committing certain crimes, and would not be used against U.S. citizens who commit those same crimes, the law treats those immigrants less leniently.

Thaomas writes:

@ EB

How did anyone's "preferences" git into your reply?

It seems to me that DACA is essentially not deporting someone that the law says may be deported if that person has certain characteristics plus not enforcing against an employer any sanction for employing the person that is not deported. These are both administrative decisions about how much effort to put into enforcing different kinds of laws.

I would hope that the same principles (comparing the cost of enforcing the law in relation to the harm caused by the perpetrators if the law were not enforced) would be applied to any immigrant without a valid visa and indeed other laws such as those criminalizing drug use and possession.

Fred Anderson writes:

Isn't the problem with DACA that -- by Presidential fiat -- it is selective? That we shall suspend prosecution of the law for a definable group, but not for those outside that group?

Isn't it a short step to Lois Lerner & friends were correct? That it is good to suspend rigid enforcement of the tax laws for a definable group, but not for those outside that group?

Aren't we well on our way to "If the ruler decides he doesn't like you, then I'm sure we can find some rule that -- although it would not apply to his friends -- sends *you* to some uncatalogued spot in the dungeons?"

MikeW writes:

A point I would like to make is that DACA isn't just prosecutorial discretion. It sets up a whole bureaucracy to process the "DREAMers", and the government really has no right to spend the money on that bureaucracy without congressional appropriation.

KevinJ writes:

As far a I am aware, no court has ruled DACA unconstitutional

EB writes:

David, your second paragraph in your last reply is correct. But it has nothing to do with what Glenn wrote. Your point in your post is about deportation as the key difference between legal dreamers and Americans what would be true if deportation were legal punishment (I think Tanya got it right despite her strong rejection of that view). Glenn's point is about "marginal" differences in benefits between two groups of people who have broken the law (anyway, I regret that we cannot have a serious discussion of differences in these benefits because they are conditioned on several factors, starting with the type of crime).

Thaomas, reading again your two comments I still think you don't understand that DACA is a Presidential Order to grant benefits to a newly created category of immigrants (see DACA in Wikipedia). A President can play around with how fast to deport illegal immigrants but he cannot create a new category of legal immigrants and grant them benefits. Regarding your preferences, please read what you wrote after "hopefully" (first comment) and "hope" (second comment).

David R. Henderson writes:

But it has nothing to do with what Glenn wrote.
You’re wrong.

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