The (Aristotelian) Rhetoric of Immigration Reform

by Lauren Gilbert

On July 11, 2013, the full U.S. Senate began debate on comprehensive immigration reform (“CIR”). In a press release issued that day, the American Immigration Council urged that “[e]vidence, rather than grandstanding and rhetoric should drive the debate on the Senate floor.” I was struck by that statement, but what does it actually mean? Over the last few months, I have monitored the various lawsuits challenging the legality of Deferred Action for Childhood Arrivals (“DACA”), the Obama Administration’s policy announced a little over a year ago to defer the deportation of certain undocumented teenagers and young adults who came here with their parents when they were children. I have followed the debates in Congress on DACA, the DREAM Act and CIR. While supporters of the DREAM Act and CIR offer powerful moral and policy arguments for providing a pathway to citizenship to many of the 11 million undocumented immigrants in the United States, opponents continue to make inroads by offering up the strongest rhetorical arguments. These rhetorical arguments, while simplistic, xenophobic and deeply-flawed, are winning traction with the public, in Congress, and in the lower courts.

If Aristotle’s Rhetoric, written over two millennia ago, is about the art of persuasion, Kris Kobach, the mastermind behind Arizona’s anti-immigrant S.B. 1070 and the lawyer for the immigration officers challenging DACA’s constitutionality, is a master rhetorician. Aristotle defined a rhetorician as someone who always keeps sight of what is persuasive. Aristotle recognized, however, that a skilled rhetorician can use his power of persuasion to do harm as well as to do good. Kobach, a former law professor at the University of Missouri Kansas City (UMKC) and currently Kansas Secretary of State, has adopted a multi-prong strategy: drafting state statutes, litigating in federal court, testifying before Congress, and appearing on Fox News to advocate his views publicly. I suspect, based on recent statements on the floors of Congress, that he has not only been lobbying members of Congress, but perhaps writing some of their speeches.

A skilled rhetorician knows that he or she cannot persuade everyone, but effectively uses the rhetorical tools of ethos, pathos and logos to achieve the desired goal. Many advocates for immigration reform disdain the use of negative rhetoric and its ability to trigger the worst xenophobia. Nonetheless, it is important that they not yield the public sphere to Kobach and his followers but be prepared to counter their rhetoric with the rhetoric of immigration reform.

Ethos turns on the credibility of the speaker, who must convince the audience that he is knowledgeable, virtuous and of good will. Chris Crane, the head of the Immigration and Customs Enforcement (ICE) Council, a union for ICE officers, and lead plaintiff in Crane v. Napolitano, is portrayed by Kobach as a dedicated ICE officer ordered by his superiors to violate the very immigration laws that he has sworn to uphold. In recent months, Crane has become a rock star among conservatives opposed to immigration reform. Yet the day the Group of Eight unveiled its plan, Crane had to be escorted out by federal marshals after repeatedly interrupting the senators. Similarly, in proposing an amendment to H.R. 2217, the Homeland Security bill, to cut off DACA funding, Rep. Steve King (R-IA) claimed that his amendment conformed to the vision of the Founding Fathers, who never would have tolerated the President usurping legislative authority. Rep. David Price (D-NC), in contrast, described King’s amendment as dangerous, irresponsible, and demagogic, as a “poison pill” and “very toxic addition” to the bill, and as “twisting the knife” by adding the DREAM Act children.

Pathos relies on the speaker understanding the emotional state of the audience; Aristotle noted that emotions can stir people and cause them to change their minds. In recent testimony before the Senate Judiciary Committee on CIR, Kobach repeatedly referred to the Boston Marathon bombing and how the proposed legislation would not prevent terrorists like Tamerlan Tsarnaev from gaining amnesty. In the debate over DACA funding, Rep. Luis Gutierrez (D-IL), in opposing Rep. King’s amendment, made effective use of pathos when he asked the largely rhetorical question of why the U.S. government should spend its money “chasing down and hunting down and deporting people who came here as children who do not even know the country that they came from?” Rep. Gutierrez applauded the President for prioritizing enforcement so as to “go after the mean, ugly people who want to do us harm.”

Logos emphasizes the internal logic of an argument. A speaker persuades by logos when he or she demonstrates (or appears to demonstrate) that something is true. In the Crane litigation, the ICE plaintiffs argue that the Constitution gives Congress the power under Article I to make law while the President has the power and duty under Article II to enforce the law. In providing relief under DACA, they claim, the Executive is engaged in law-making in violation of separation of powers. This argument relies, however, on the faulty premise that Congress’s and the President’s roles are sharply divided between law-making and law-enforcement, ignoring the fact that in certain areas implicating immigration, like foreign policy, their respective powers under Articles I and II are concurrent and overlapping.

To give yet another example, in opposing CIR, Kobach and allies offer up what looks like a simple syllogism: 1.) the immigration laws should not reward lawbreakers over immigrants who have played by the rules; 2.) an amnesty providing a path to citizenship to illegal immigrants would reward lawbreakers; 3.) thus, any immigration reform in Congress should not offer a pathway to citizenship to illegal immigrants. A well-constructed syllogism appears to rely on internal logic but often depends on an unstated premise that reflects the belief system of the target audience. Here Kobach’s argument relies on the implicit premise, reflected in public opinion polls, that immigrants without legal status are lawbreakers. While claiming to persuade through logos, he effectively uses pathos by equating those who enter without inspection or overstay their visa with criminal aliens.

Whether he is representing ICE plaintiffs in Court, appearing on Fox News, or testifying before Congress, Kris Kobach always keeps his sights on what is persuasive. Immigration reform requires, however, that advocates of reform not cede the public sphere of rhetorical debate. Rather, they must be able not only to identify negative rhetoric but to break it down: to show when it is ugly and mean-spirited, to demonstrate how it manipulates people’s emotions and triggers xenophobic responses, and to prove that it is based on faulty or hidden premises. At the same time, they must become adept at using the Aristotelian tools of ethos, pathos, and logos to set a better course, to demonstrate, for example, how DACA and the DREAM Act reflect a commitment to justice and fairness on behalf of the young women and men who were brought here as children, who consider themselves Americans, and who, until now, have been denied legal status based solely on the accident of their birth.

About The Author

Lauren Gilbert is a Professor of Law at St. Thomas University School of Law where she teaches Immigration Law, Constitutional Law and Family Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.