Pope Leo on immigration enforcement

Pope Leo was recently asked by a reporter about the deportation and detention of illegal immigrants.  In response, he made the following remarks:

I think we have to look for ways of treating people humanely, treating people with the dignity that they have.  If people are in the United States illegally, there are ways to treat that.  There are courts, there’s a system of justice.  I think there are a lot of problems in the system.  No one has said that the United States should have open borders.  I think every country has a right to determine who and how and when people enter.  But when people are living good lives, and many of them for ten, fifteen, twenty years, to treat them in a way that is extremely disrespectful to say the least, and there has been some violence unfortunately, I think that the Bishops have been very clear in what they said and I think that I would just invite all people in the United States to listen to them.

This is a refreshingly calm, reasonable, and nuanced approach.  As I have shown in earlier articles (at Public Discourse and at UnHerd), the Church has traditionally affirmed both that wealthy nations have a general obligation to welcome immigrants to the extent they are able, but also that they are not obligated to let in all who seek to enter, that they may put conditions on entry that take account of the economic needs and cultural cohesion of the receiving nation, and that immigrants must obey the law.

Churchmen who comment on immigration these days sometimes acknowledge the right of a nation to control its borders, but only in the vaguest way, and while seeming to criticize all actual efforts at enforcement.  The pope’s acknowledgement is much more concrete.  He not only eschews the idea of open borders, but specifically says that a nation “has a right to determine who and how and when people enter.”  That entails that not everyone must be allowed in, and that a nation can put conditions on the entry of those who are allowed in.  The pope also says that it is legitimate to “treat” the problem of those who are in the country illegally, namely through “courts… [and the] system of justice.”  That entails that a country need not, in general, simply accept the presence of those who are in the country illegally, but may resort to the legal penalties appropriate to this particular sort of lawbreaking. 

Though he doesn’t explicitly say so, deportation is obviously among these penalties.  (It would make no sense to say that people shouldn’t enter illegally but then refuse ever to deport someone, just as it would make no sense to say that people shouldn’t steal but then refuse ever to make a thief give back what he has stolen.)  The qualification the pope puts on his remarks on controlling borders is not that the law should not be enforced, but rather that this should be done in a humane and respectful way. 

He also puts special emphasis on the need to deal respectfully with illegal immigrants who “are living good lives, and many of them for 10, 15, 20 years.”  This seems implicitly to acknowledge that the case for punishment or deportation is stronger for those who are engaged in criminal activity (beyond just illegal entry) and for those whose illegal entry was more recent. 

This much is likely to be welcome to those who support the Trump administration’s efforts to use deportation to reverse the Biden administration’s lax border policies.  However, many of them are also likely to be unhappy with the pope’s view that illegal immigrants who otherwise obey the law, and who have been in the country a long time, ought to be treated more gently.  Some seem to take the view that the only thing that matters is whether someone entered the country illegally, so that deportation is equally appropriate for all such people, regardless of how long they have been in the country or how law-abiding they have otherwise been.

However, the moral issues here are not that simple, and the pope’s remarks reflect important and longstanding principles in natural law and Catholic moral theology.  Catholics need to consider these principles and resist the temptation to view everything churchmen say about this issue through a political lens, as if absolutely every expression of sympathy for illegal immigrants reflects liberal political commitments rather than Catholic tradition.  That just isn’t the case.

St. Alphonsus on custom

Among the relevant considerations here are what moral theologians have said about the way that custom can, under certain circumstances, override human law.  St. Alphonsus Liguori addresses the topic in Book I, Treatise II of his Theologia Moralis.   He identifies three conditions that custom must meet in order to have this effect.

First, the custom must not be merely a matter of what this or that individual does, but must reflect the practice of the entire community, or at least the majority.  The reason is that if the governing authorities tolerate a custom that prevails within the community at large, that can be interpreted as their having at least tacitly consented to it.

Second, what is in question must indeed be merely human law.  Custom cannot override natural law or divine law.  However, it is not necessary that the initial introduction of the custom have been sinless.  Liguori says that although those who first violated the law in such a case sinned, once the custom of violating it has taken hold and been tolerated, those who later follow this custom do not sin, and if the custom prevails long enough it would not be justifiable to punish  them for following it.

Third, Liguori says that “a continuous and long-lasting period of time is required” in order for the custom to take root (Grant translation, p. 192).  Exactly how long is a matter of dispute, but Liguori notes that some theologians hold that ten years is sufficient.  (In this connection, it is interesting to note that Pope Leo refers to those who have been in the country illegally for “ten, fifteen, twenty years.”)

But how could custom override law even given these conditions?  I’d explain how as follows.  Note first that in the natural law tradition, promulgation is essential to law.  If a custom that conflicts with some human law takes root and the governing authorities do not enforce the law but instead implicitly consent to the custom that is contrary to it, then a kind of virtual promulgation of the custom can be said to have occurred.

Note second that law exists for the good of the social order, and social life requires stability and predictability.  When a custom is established and then tolerated by public authorities long enough for people to come to rely on it, suddenly to punish them for following the custom would undermine the stability of the lives they have built.  And that would be contrary to the reason for which the law exists.

However, St. Alphonsus also indicates that if the governing authorities begin to enforce the human law that the custom conflicts with, this would undermine the force of the custom.  From the context, it seems he may be talking about a case where such enforcement prevents the custom from taking deep root in the first place.  But he may also mean that even after the custom has taken deep root, if the governing authorities start enforcing the law again, the force of the custom is nullified.  Certainly such enforcement would plausibly amount to the authorities’ once again promulgating the original law.

Though St. Alphonsus does not explicitly say so, the implication of his principles would seem to be that those who violated the law during the long but temporary period when the governing authorities were still tolerating such violation should not be punished, but that more recent violators may be punished.

Application to immigration enforcement

This is, of course, all very abstract.  How would it apply to the concrete case of illegal immigration?  The idea would be this.  For decades until recently, U.S. immigration enforcement was more lax, with public authorities tolerating large numbers of illegal immigrants.  And this has been a bipartisan tendency, so that the federal government as such (and not merely this or that party that held power at any particular time) can he said to have tolerated this.  To be sure, there has always been some enforcement, so that it cannot be said that the authorities had ever tacitly consented to an open borders policy.  But (so the argument would continue) they did nevertheless tacitly consent to permitting large numbers of illegal immigrants to remain in the country relatively unmolested, and to secure employment, build families, etc.  A custom of forming such communities had taken root and been tacitly consented to by the public authorities.

In recent years, however, the public authorities have once again begun vigorously to enforce the immigration laws.  There has been some inconsistency, insofar as vigorous enforcement during the first Trump administration was followed by lax enforcement under Biden, followed by vigorous enforcement once again during the second Trump administration.  But it can no longer be said that the federal government as such tacitly consents to the custom of forming communities of large numbers of illegal immigrants.  Those who have entered the country illegally in recent years therefore cannot appeal to the force of custom, in the way that those who have been here illegally since the years prior to Trump might appeal to it.

Applying St. Alphonsus’s principles, then, there are grounds for treating illegal immigrants who have been in the country for decades with more leniency than those who have entered the country in recent years.  And this, I believe, is basically the thinking that underlies the pope’s remarks.  It doesn’t follow that those who have been here for decades may not be punished at all (through fines, for example), because while enforcement was during that time more lax, it was not non-existent.  Hence the tacit message sent was not that the public authorities consented to illegal immigration, but rather that they would treat it leniently.  But neither does the pope say that those who illegally entered the country decades ago may not be punished at all.  What his remarks indicate is rather that they should not be dealt with in the same manner as those who have entered more recently.  Because they have been here so long, peremptorily deporting them can be greatly disruptive (to families, for example) and thus contrary to the good of the social order, in a way that deporting those who entered recently is not.

To be sure, reasonable people can disagree about the details.  There are multiple moral principles to bring to bear here, and multiple empirical considerations that have to be taken account of in applying them.  As in other areas of prudential judgment, it is wise for the Church to set out the general principles and leave it to the faithful and to public authorities to debate and determine the best way to implement them. 

The point, though, is that the pope’s remarks cannot justly be dismissed as a sellout to fashionable liberal political opinion.  They have a solid foundation in traditional Catholic moral theology and deserve a respectful hearing.