THE RUBIO OF OMAR KHAYYAM
The voice I hear this passing night was heard
In ancient days by emperor and clown:
Perhaps the self-same song that found a path
Through the sad heart of Ruth, when, sick for home,
She stood in tears amid the alien corn…
John Keats (1795-1821), from “Ode To A Nightingale;”
The Moving Finger writes: and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.
From “The Rubaiyat of Omar Khayyam” [1048-1131], tr. Edward Fitzgerald, 1859.
Marco Rubio has ventured forth to establish his legacy as an American statesman
prior to his acceding to the Presidency in 2017. He is supporting a soon-to-be-unveiled proposed
comprehensive immigration reform act.
Such an initiative could far outshine anything President Barack Obama
has advocated, despite the proud words that underlay his credo, as set forth in
“The Audacity of Hope,” 2006.
Senator Rubio (R.-Fla.) is
seeking to leap-frog the concerns expressed by then Senator Obama (D.-Ill.),
concerns that were, among other issues, determinative in drowning similar
legislation in 2006. According to Obama,
employers were more willing to hire undocumented Mexicans than Americans ‘Cause,
let’s face it, Barack. These Mexicans
are just willing to work harder than Americans do.’ To which Obama responded, “And if I’m honest
with myself, I must admit that I’m not entirely immune to such nativist
sentiments. When I see Mexican flags waved
at pro immigration demonstrations, I sometimes feel a flush of patriotic
resentment. When I’m forced to use a
translator to communicate with the guy fixing my car, I feel a certain
frustration.” P. 266. (See discussion, pp. 259-269, passim.)
As with Obama’s curious
support for gun safety legislation, that entailed not a single personal
LBJ-type “persuasion” meeting with foreseeable Congressional nay-sayers, Obama’s
position on immigration reform seems more calculated to keep the issue
politically alive than to force its resolution.
General Dwight Eisenhower’s definition of leadership was “getting other
people to do what you want them to.” So
when Barack Obama persists in exhortation he knows will not work, on any issue,
as it has not worked before, he is being either cynically hypocritical or
woefully incompetent. At best, he is channeling
Moses: he can see the Promised Land; he just refuses to cross over.
Marco Rubio seems to think
that he can equivocate his way through immigration reform, without losing any
political capital. His position appears
to be that he has a certain set of principles; that the proposed legislation will
incorporate those principles; on the other hand, if by amendment or
interpretation the Senate departs from those principles, Rubio will be free simply
to pick up his marbles and slink back into the night. Not bloody likely! Why he thinks he would be better advantaged
retreating on immigration reform and reneging on every promise, rather than
pursuing the subject as a moral imperative is quite beyond me. Perhaps his callowness is showing.
My own fear, as a civil
libertarian, of the outlines of currently proposed immigration reform is that
by not granting amnesty outright, to eleven million undocumented souls we DARE
NOT deport, for fear of being charged by the United Nations with ethnic
cleansing, we will be perpetuating the same bigotry Obama admitted to in his
great AUDACITY opus. I can understand
the Republicans’ desire to postpone the day of political reckoning that will
inevitably lead to the demographic reality that consigns (especially affluent)
white people to a minority status in America.
But what’s in it [that postponement of the inevitable flowering of a new
Hispanic triumph] for the Democrats? Hear
me, O Democrats. Ten years waiting for
citizenship? What does happen to the “dream
As I have said before, the
term “illegal” to describe undocumented aliens is not merely politically
incorrect, it is philosophically invalid.
Yes, there are clear statutes that invoke penalties. These are laws by their own legal
definition. At another level, they are
not laws, at all, because they send – and are intended to send – a double
message. The figure of Uncle Sam stands
at the border with a stop sign in one hand and a fistful of dollars in the
other. A statute is not a law that has
moral force where its very intention is to invite evasion.
To the extent that
proposed legislation clarifies the legal status of guest workers and forgoes
mass deportations that is a consummation devoutly to be wished. On the other hand, Sen. Rubio has indicated
that the undeclared amongst us who come out of the darkness will be denied
federal benefits, including health and insurance benefits. That would be unconstitutional pursuant to
the Equal Protection clause of the Fourteenth Amendment, and the denial of life,
liberty and property without due process of law under the Fifth Amendment,
which has been held to incorporate equal protections principles. The dilemma Rubio faces is that the eleven
million undocumented persons will no longer be (by anyone’s definition)
ILLEGAL. Hence, all of the laws extant
that discriminate accurately for the purposes of granting State and federal
benefits between lawful noncitizens and undocumented noncitizens would have to
fall. That is why the attempt to avoid
the obvious, which is true amnesty, is so ultimately pointless. For further legal analysis of this point, I
would direct the attention of the reader to Finch
v. Commonwealth Connector Authority, 959 N.E.2d 970 (Mass. 2012).
I conclude with the reason
immigration reform deserves to become a moral imperative, like the ending of
slavery – which, in a way it is – by reciting the words come down to us through
Leviticus 19: 33 & 34:
“And if a stranger sojourn with thee in your land, ye
shall not vex him. But the stranger that
dwelleth with you shall be unto you as one born among you, and thou shalt love
him as thyself; for ye were strangers in the land of Egypt. I am the LORD your God.”
My hat is doffed and my
heart goes out to Marco Rubio. Because
if he fails in this, he will never become President or Vice President of the
United States. That is a risk the rest
of us should be truly in awe of.
Harvard Hollenberg is a writer and an appellate lawyer in New York City.
© Copyright Harvard Hollenberg 2013. All rights reserved.