That American Jews overwhelmingly support a path to citizenship for illegal immigrants is, as the psychologists say, over-determined. Our religion, our history, and our experience all say we should.
The Torah enjoins us to welcome the stranger, the ger, in our land because we ourselves were once strangers in Egypt. After the destruction of the Second Temple, we were compelled to live in countries not our own, and for most of the past two millennia our status was as outsiders subject to laws that were sometimes welcoming, often not so much.
In the U.S., of course, the legal situation was different. As George Washington famously wrote to the Jews of Newport, “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.”
Nevertheless, we experienced our share of bigotry in America, not least in the anti-immigration laws of the early 1920s, which severely limited the number of immigrants from Eastern Europe (as well as Southern Europe and Asia). And even as today’s nativists piously talk about how their forebears all came to this country legally, we know better. The other side of our story is documented in CUNY professor Libby Garland’s new book, After They Closed the Gates: Jewish Illegal Immigration to the United States, 1921-1965.
But does this mean that our community should back President Obama’s executive order making it possible for millions of undocumented immigrants to stay in this country and obtain work permits? Legitimate questions have been raised about the wisdom as well as the legality of stretching precedent and extending executive power to the degree that the president has.
A few months after stepping down from the Supreme Court in 1939, Louis D. Brandeis told a group of Zionist leaders that Jews should continue to immigrate to British Mandatory Palestine despite a British government white paper forbidding it. So far as Jews were concerned, said Brandeis, immigration was legal because the white paper violated the terms of the League of Nations Mandate.
“To Brandeis, the law was not just a collection of words on paper, but had to relate meaningfully to real life,” writes Rafael Medoff, director of The David S. Wyman Institute for Holocaust Studies.
“The British policy of keeping most Jews out of Palestine was “legal” only in the dry, technical sense; it was not legal in any sense related to what was happening in the real world.”
The millions of illegal immigrants now in the United States do not face what the Jews in Nazi Germany faced in 1939. But the challenges they must endure, not least in terms of families being torn apart, are acute. And there’s no sign the Republican-controlled Congress that takes office in January will be any more able than the present Congress to pass legislation that meets those challenges in a fair and humane way.
There are times when justice requires pushing the envelope of the law. This is one of those times.