In my diocesan newspaper, 2 local priests take on the immigration issue, with an attempt to teach about it from "Catholic principles." And "not to take sides on policy questions such as how or even whether to make a path to citizenship for the undocumented," either. So they say.
What's notable about this particular foray into supposedly Catholic teaching is that it is the first time I have EVER seen an explicit attempt to justify the media-drenching meme "it isn't a crime," and thus to defuse the theory that we have to "punish them."
What would be even better would be for the authors to get the argument right, to teach Catholic principles correctly and without an admixture of grievous error. For, alas, even though a lot in the article is true in some sense, it is presented in service to an erroneous basic stance.
The underlying premise to get to the conclusion "it isn't a crime" is this: according to
centuries of Anglo-American legal tradition, which labeled as “crimes” only actions that are malum in se, i.e., intrinsically wrong, like stealing. Immigrating illegally is by its nature a “civil offense,” not a crime, and so in accord with natural law, the penalties must be proportionate to a civil offense, not to a crime.
It is important to understand that Frs. Planty and McGraw are not just switching terminology as if it were just a semantic issue, they are presenting a claim that the different terms are based on different realities: "crimes" are evil in an important way that "civil offenses" are not, and this justifies both the different terms AND different results. Crimes are things that cause evils even if you don't have an explicit human law about it, civil offenses are things that are evil because you made a rule.
First, it appears that they may have mis-identified criminal law and civil law issues. (1) The distinction between the two is not necessarily based on whether the act is “malum in se” versus “malum prohibitum.” (2) An offence that is malum in se is not necessarily intrinsically evil. And (3) criminal law may encompass acts that are evil acts based on natural law but are not intrincically evil acts.
(1) The distinction between “malum in se” versus “malum prohibitum” has to do with the difference of whence the evil arises from not obeying, whether the evil that comes from disobeying the law is an evil because the law was made, or would be present whether the law was made or not. The former is a “wrong because it has been prohibited,” whereas the malum in se is wrong under the natural law even when there is no human rule spoken against it. Driving on the wrong side of the road is bad because we have made a law to drive on the right side, not in its own right. However, the criminal versus civil distinction runs along different lines . The Catholic Encyclopedia reports that “Libel differs essentially from slander, in that it may be the subject of both criminal and civil litigation, whereas slander is not a criminal offence,” even though slander and libel are both malum in se, both are constitute a wrong even when there is no human law against them. In fact, there are different traditions about how to sort out criminal and civil matters, and within those traditions not all law systems are perfectly orderly, no one country or tradition is a completely perfect example showing that all criminal matters are about malum in se while civil matters are about malum prohibitum. It is not very wise to even attempt to work on the basis that the so-called "Anglo-American" traditional distinction of criminal versus civil law matches up with a specific distinction in under Catholic teaching, as if it is going to constitute a definitive representation of Catholic divisions.
(2) A good moral act must be good in all 3 of the fonts of morality: the object of the act (which must be in itself good or neutral), the intention or goal, and the circumstances. Evil acts take their evil from any of 3 types of disorder – whether in the object, the end goal or intention, or the circumstances – but intrinsically wrong acts are acts wrong from their object. Thus going to church on Sunday is good of its own nature (or object), but doing so in order to meet with your adulterous partner makes the going to church a bad act morally - it is a morally wrong but not an intrinsically evil act.
(3) It is sufficient for some crimes that the act be morally wrong in the concrete, even if it is wrong due to bad intentions or disordered circumstances. Fraud is wrong due to the evil intention for which the act is chosen, without the evil intention the act is a different crime.
The authors might have noted that under some descriptions of the criminal / civil distinction, criminal law pertains to relations between the actor and the state, whereas civil offences pertain to relations between individuals directly (as Catholic Answers suggests: here ). See also this comment from the Catholic Encyclopedia on Canon Law: “Public law would, therefore, directly intend the welfare of society as such, and indirectly that of its members; while private law would look primarily to the wellbeing of the individual and secondarily to that of the community.”
But that's all not critical. We can set aside as unimportant whether immigration law is “criminal” or “civil” in this context, what is important for their thesis is the position that the evil from disobeying immigration law in an evil from the prohibition itself, a malum prohibitum.
However we look at it, though, the authors don’t support the theory that the evil attendant on disobedience to immigration law is a malum prohibitum, and in fact the theory is highly debatable (that is, it is debatable even while remaining totally within Church teaching). What the authors do instead of proving the thesis is they dance around the point throwing whatever darts that they have at hand, arguing about the (valid) issue of legal positivism that opposes natural law, and the (also valid) distinction between real laws and laws that are apparent laws but fail to be real laws because they are unjust.
The authors state as a principle that “People have the right to migrate to support themselves and their families.“ This is true, but is also an incomplete principle. Migration implies both a terminus a quo and a terminus ad quem – the place to which as well as the place from which. While it is possible to think about emigration in the abstract, as just “leaving the country,” it is impossible to actually migrate from a specific place without passing through actual places and arriving at a specific new place. Thus the new place you land in cannot be excluded from the complete statement of principle: People have the right to migrate to support themselves and their families, but not so as to damage the good of the host people. For example, nobody would have the right to migrate and then set up a new house and farm in the village common where the whole village has always pastured their animals, merely because “nobody owned the village common.”
Stating the full principle is important because immigration law prevents a general evil to the body politic. St. Thomas says in his treatise on law that customs help support virtue, and a people have a right to retain their customs. Pope Benedict XVI in Caritas in Veritate points out a modern danger to cultures:
[C]ompared with Paul VI's day…cultures were relatively well defined and had greater opportunity to defend themselves against attempts to merge them into one. Today the possibilities of interaction between cultures have increased significantly…Let it not be forgotten that the increased commercialization of cultural exchange today leads to a twofold danger…In this way one loses sight of the profound significance of the culture of different nations, of the traditions of the various peoples, by which the individual defines himself in relation to life's fundamental questions.
It cannot be denied that unlimited immigration can have the damaging effect Benedict was talking about – causing indiscriminate reduction (or even eradication) of existing cultural norms, including those good and noble customs which are essential to the subsistent society – and so taking a measured and regulated approach to receiving new strangers is a matter that belongs to the common good as a whole and thus pertains to the relationship between the individual immigrant and the whole state. Thus laws can regulate immigration to help a society retain its internal customary structures and keep intact its wholesome moral norms. A society overwhelmed by foreign-born persons will have trouble maintaining its customs intact (and the virtues they support). This can be seen in examples of such things as France’s riots in 2005 and 2013, largely due to the effects of persons displaced from their home cultures and not well integrated into the host country. Unregulated immigration (falling hard on some locales instead of being spread out) causes sometimes severe social disruptions: schools that do not have the funding to match needs, and the resulting damage non-English-speaking children do to the rest of the class in making progress in education, disruption of hospital funding when immigrants use emergency rooms for doctor's offices, etc. Not to mention drugs, mules, and gangs. Or illegal job practices, tax cheats, and slavery. In each of the last 12 years the US has allowed 1 million or more legal aliens, close to the same number each year as the highest number ever (since we started counting), 1.2 million in 1907 (and we have received many more illegally). But in addition to noting the annual number of new immigrants, it necessary to see the aggregate number of new people as a percentage of the population: in 2011 the foreign-born population was 13.5% of the total (over 40 million persons), which is the same percentage as when immigration was at its peak in 1907. Thus annual numbers become even more important when viewed over the lens of a several-year period.
Excess immigration levels can harm a country in its common good regardless of any specific attribute of various immigrants (whether skilled, educated, hard working, or not): They carry a different culture, a culture that doesn't integrate morals in the same way. Immigrants put stress on a society no matter how hard working they are. A violation of laws regulating numbers and other aspects will tend to disturb the norms which constitute its culture and support its virtues. If excess numbers immigrate, the harm that is done to the common good is harm whether or not the country has made a law restricting immigration. Thus the evil done by ignoring suitable immigration limits is not an evil due to the prohibitive law, i.e. not a malum prohibitum.
Another significant error from the authors is in saying
“The penalty of deporting the offender from the country is simply disproportionate, as a general matter, to the offense of illegally entering or remaining in the country.”
This is appears to assume (incorrectly, as indicated above) that the evil of disobeying the law is a malum prohibitum. It also treats the repatriation as a punishment. It is a well established principle of justice and punishment that the offender who wrongly takes something satisfying his own will in violation of the norm is not left in possession of his ill-gotten good. If a son murders his father to inherit property, he is not granted the property as his inheritance. If a person steals $5,000, the $5,000 is first taken away and given back to the victim, and then he is punished further for upsetting public order. An immigrant’s repatriation to his home simply removes from the illegal immigrant the good which he has wrongfully grasped. The punishment properly due to his offense is something over and above that removal. It is impossible for repatriation to be "too harsh" a punishment for illegal immigration in general, as it isn't even punishment properly speaking.
St. Thomas taught, and Pope John Paul II’s Evangelium Vitae restated, the fundamental concept of punishment: the offender by bad will has disturbed the public good by satisfying his own will contrary to law, and the just retribution imposes upon him an evil equal in degree, i.e. equal to the evil of his will in concretely choosing something that satisfies himself contrary to the law, choosing his good in opposition to the common good. Thus the ideal punishment takes into account both a general matter (that of the good which the law supports or the evil which the law defends the public from) and an individual consideration (how fully his will conforms to the malice of the act chosen). Therefore, the range of punishments for the offense allow for the full range of cases, including the situation in which the offender’s act is fully deliberate, where his will is wholly conformed to the disordered violation of the law, and so for the offence considered in the abstract, the “due punishment” for such an offence is the punishment appropriate if the offender’s act is completely deliberate, wholly consented. In a case of theft, returning the lost good to the owner is a necessary prerequisite but distinct from the punishment as such which redresses the evil will in the offender, and this penal imposition is due regardless of whether the good the criminal has wrongly grasped has been returned to the owner, or whether he destroyed it and it cannot be returned. But as long as he retains his grasp of the stolen good, his will perpetuates the offense itself and extends the debt of punishment due. (If, in a given case, the offender is in a reduced state of culpability due to special conditions such as reduced consent, a reduced penalty is justified, but the norm is to be stated with regard to the general consideration, the evil from which the law defends us or the good toward which the law is directed.)
“Sin incurs a debt of punishment through disturbing an order. But the effect remains so long as the cause remains.” (St. Thomas, Summa Theologica, Prima Secundae, q. 87, A3). Thus, if an offender takes upon himself to ignore immigration law and become an immigrant without legal permission, as a general matter the normative dealing with him cannot be less onerous than taking away of the very thing in which the offender indulged his own will rather than follow the law. The due punishment presumes removing the object taken as a prerequisite. Leaving him in the country both fails to address the ongoing harm to the common good – the effect of his presence tending to contribute to the potential damage to culture noted above from Caritas in Veritate – and ignores redress of the disorder in his will in being willing to ignore the law about this and basically say “my personal determination is more weighty than the legislator’s determination for the common good.” Admittedly, in many individual cases illegal immigrants will have reduced culpability from a number of causes and will justify less severe punishments. But since "less severe punishment" regards the imposition of penal remedies, not the pre-requisite restoration of the status quo ante for the good in question, there can be no assumption that repatriation is excessive even in cases where reduced culpability exists.
I treat as a separate case the presence of children of illegal immigrant parents, especially those who have grown up from infancy here and know only English and only American ways. While legally their status should not be that of "illegal immigrant," nor should it simply be accounted "full citizen" or even "fully legal resident" merely because automatic repatriation would be an unconscionable injustice to them. However, repatriation of their parents is clearly just, and if the parents want to be not separated from the children they can legitimately ask for their children to be "repatriated" with them. (If parents can legitimately emigrate taking their children with them, they can return taking their children with them.)
I do NOT treat as a separate case (from the general) the plight of separation for adult members of a family, where one (or more) are being repatriated to their old home. Presumably, the ones who are not being repatriated are (a) either here illegally as well, and they can just get off their duffs and go home with their spouses / siblings and solve the separation themselves, or they are here legally and thus THEY CHOSE to be separated from their family of their own will. In neither case is the separation properly due to our enforcement of the law, it is due to their own actions or inaction.
As the above considerations show, even when you start out with the Church’s entirely sound and valid moral principles, applying them to given political considerations is difficult and fraught with the possibility of error. The Church’s own magisterial role usually rests above the fray of applying the general moral norms to specific cases in politics because her authority does not always extend to prudential political judgment of the specific cases. Therefore, it is of critical importance for priests who are engaged in teaching on both the general moral norms and the specific application thereof to make it absolutely clear which parts of their teaching belongs to the magisterial Teaching Church as such and which parts pertain to their own analysis and judgment. Frs. McGraw and Planty would have vastly improved their article by carefully delineating their own conclusions from the general moral principles and explicitly stating that their own conclusions are not Church teaching. For example, although the Church teaching may embrace the general distinction between malum in se and malum prohibitum, so far as I have found she provides in no defining document that an offence against immigration law is malum prohibitum. As reasonable as this conclusion may have appeared to the authors, if is not official teaching it should not be presented that way. Presenting it in an article to the general public that speaks fairly strongly about Church teaching and “principles” can easily mislead people into thinking that the specific conclusion offered is official Church teaching. And this often causes Catholics to look with disfavor on "Church teaching" in general when the authors just get it wrong, like here.