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A “Path to Citizenship” for Current Illegal Immigrants?

Discussants: Marc R. Rosenblum, and Bruce Fein
Updated: April 6, 2007


With Democrats in control of Congress, some see the best opportunity in years to fix the U.S. immigration system. At the center of most comprehensive reform recommendations is a path to citizenship for many of the country’s estimated twelve million illegal immigrants. But opponents say this amounts to a massive amnesty, an experiment that proved ineffective in previous sweeping immigration legislation twenty years ago. Supporters say a legalization process for illegal immigrants is both a practical necessity and moral obligation for lawmakers.

Debating the merits of a path to citizenship plan are Marc R. Rosenblum, an associate professor of political science at the University of New Orleans who formerly worked on the staff of the Senate Immigration subcommittee’s Democratic minority, and Bruce Fein, a former Justice Department official in the Reagan administration who is a principal with the Lichfield Group, a consulting firm.

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Bruce Fein

Most Recent

April 6, 2007

Bruce Fein

Mr. Rosenblum has surrendered to my argument that unless ambivalence over illegal immigration is displaced by unwavering public opposition, legalization will do nothing but aggravate illegal immigration.  His proposals for effectuating that displacement are deficient because they misconceive the reasons for the ambivalence: namely, the beliefs of Americans who know or employ illegal aliens that they are good people who do not deserve deportation.

Mr. Rosenblum proposes to adjust visa policies to enable more immigrant workers and family reunification. But neither will make Americans despise their illegal alien friends, associates, or employees and thus support their deportations. Moreover, any plausible liberalization of visas would leave the economic beacon that fuels illegal immigration virtually undimmed. That observation does not discredit visa liberalization, but simply recognizes that the illegal alien population would remain undiminished by the reforms. Similarly, the harshness of immigration law should be relaxed by circumscribing the types of deportable crimes, expanding the availability of hardship exceptions to deportation, upgrading care of children born in the United States to illegal aliens, or enlarging the categories of victims entitled to asylum.  But these relaxations are justified on their own terms, not because they will dent the number of illegals.

Mr. Rosenblum draws a false analogy to Prohibition in defending legalization. He correctly notes that after the Prohibition Amendment was repealed in 1933, it would have been absurd for the United States to have prosecuted persons who had purchased intoxicating liquors illegally when the amendment had been in effect. Those prosecutions would have either violated the Ex Post Facto Clause of the Constitution or have senselessly punished past conduct which had been made legal. To refuse to legalize illegal aliens, however, neither offends the Clause nor penalizes that which prospectively has been made the law of the land.

Mr. Rosenblum tacitly scoffs at my proposal to address undocumented immigration with masterly congressional inactivity, i.e., leaving the current muddle undisturbed. But the concept is well understood in medicine as an iatrogenic treatment—one that inflicts more harm than it alleviates. As I have explained in prior submissions, the legalization plan that Mr. Rosenblum salutes would simply whet the appetite for more illegal immigration.

He retorts that an unprecedented plan to staunch illegal flows is crystallizing around a modern visa allocation system, a temporary worker program, meaningful worksite enforcement, and cooperative U.S.-Mexican and U.S.-regional control strategies. But reason and history make the plan’s success highly dubious. Accordingly, flirtation with legalization should commence only after proof that the plan has succeeded in stopping the torrent of undocumented migration.

Marc R. Rosenblum

April 5, 2007

Marc R. Rosenblum

Mr. Fein is correct that the United States is ambivalent about undocumented migration, and that effective migration control requires that employers and other U.S. citizens view enforcement efforts as legitimate. Indeed, this insight is at the heart of the campaign for comprehensive immigration reform including earned legalization.

What would it take for Americans to view migration enforcement as legitimate? First, visa policies must be brought into alignment with the realities of our global economy. Employers and families will continue to look for ways to game the system as long as the system fails to provide needed visas. Second, most Americans recognize that many of today’s undocumented immigrants have deep roots in the United States, that their illegal migration is the product of strong structural forces and flawed U.S. policies, and that their mass deportation would therefore be unjust and impractical. Tough new enforcement measures must be brought on line only in conjunction with these broader fixes, and existing undocumented immigrants must be given a chance to play by the rules in a system that works.

Mr. Fein raises the relevant analogy. Prohibition failed not only because it lacked cultural support, but also—more fundamentally—because it was a flawed policy. Having recognized this and taken steps to enact sensible liquor laws, should the United States have then tracked down and prosecuted former drinkers?

I should reiterate that legalization only makes sense as a policy tool (rather than a handout to existing undocumented immigrants) in the context of comprehensive reform. The Immigration Reform and Control Act failed to reduce undocumented migration not because it included an amnesty, as Mr. Fein suggests, but because it lacked any of the other elements now being considered: a modern visa allocation system, a realistic temporary worker program, and meaningful worksite enforcement. The House’s STRIVE Act would also add cooperative U.S.-Mexican and U.S.-regional control strategies to the mix, an approach which deserves careful consideration in the contemporary period.

Ultimately, it’s not clear what Mr. Fein proposes to do about undocumented immigration, beyond describing it as “inescapable.” Four percent of all U.S. residents and five percent of U.S. workers now lack legal status and the rights and protections that come with it. These numbers are increasing, and the problem cries out for a solution. No one believes legalization is the perfect policy, but it is clearly the fairest and most practical policy. What other choice do we have?

Bruce Fein

April 4, 2007

Bruce Fein

Nothing in Mr. Rosenblum’s response disputes my central argument:  namely, that the nation’s moral ambivalence over illegal aliens makes strict enforcement of laws prohibiting their presence or employments chimerical; and, that without strict enforcement legalization will simply attract more illegals in expectation of new legalization after a numerical threshold has been passed.

Mr. Rosenblum is guardedly optimistic, however, that a political constellation is emerging which would support tough enforcement provisions of the type that earmarked S.2611.  But the 110th Congress has shown no signs of an immigration reform law consensus.  Moreover, even if stricter measures were enacted through some political jugglery, without public sentiment that morally frowns on illegal aliens enforcement will be ineffectual.  Citizens and employers must routinely volunteer their suspicions or knowledge of illegals if deportation is to be more than a paper tiger.  But that cooperation with Immigration and Customs Enforcement will not be forthcoming irrespective of the law because illegals are generally applauded for their work habits and ambition.  No law passed by Congress can alter that dominant cultural attitude.  And experience teaches that a law without deep cultural support will be honored more in the breach than in the observance.  Think of the Prohibition era or the enforcement of obscenity prohibitions in San Francisco, New York, or Las Vegas.

Contrary to Mr. Rosenblum, I never disputed that legal is preferable to illegal migration.  I simply asserted that as a practical matter, illegal migration is inescapable because the nation is irresolute over whether illegal aliens are bad people.  To be sure, legalization would benefit those who were formerly illegal, hike their tax payments, and reduce their vulnerability to exploitation by the unscrupulous.  Sensible analysis, however, cannot stop there.  Legalization would also fuel more illegal migration, and compound the problem that ostensibly had been mitigated, akin to one step forward but two steps back.

Mr. Rosenblum’s trajectory of undocumented immigrants confirms that conclusion.  After legalization of millions in the Immigration Reform and Control Act of 1986, the undocumented population continued to swell, “with the highest growth rates in the 1990s.”

Even if Rosenblum’s legalization solution would enlarge rather than diminish illegal immigration, he enlists the specious moral argument that “no one chooses to migrate illegally.”  Illegal aliens know exactly what they are doing in hiring “coyotes” to smuggle them across the border or otherwise plot to evade the ICE.  It might equally be said that no one chooses to rob a bank because they would have preferred to have been born with all the gold in Fort Knox.

Marc R. Rosenblum

April 3, 2007

Marc R. Rosenblum

Mr. Fein concedes the two main points in my previous post: that the only realistic policy to reduce the number of current undocumented immigrants is legalization, and that the moral argument against legalization—that we don't want to reward law-breakers—is balanced by the moral argument in favor of legalization—that no one chooses to migrate illegally.

Instead, Mr. Fein directs our attention to three new issues. First, he questions whether undocumented immigration is increasing, asserting that the United States was home to twelve million undocumented immigrants in 1975, and would be home to twelve million new undocumented in a post-legalization future. Yet there is no support in the academic or governmental literature for this view of the undocumented population as a fixed constant. He's correct that an INS estimate established a range of four - twelve million undocumented immigrants in 1976—just as some estimates put the figure at twenty million today—but experts like Jeff Passel put the number at 2.5 - 3.5 million in 1980. Since that time, the INS/DHS, U.S. Census Bureau, and Pew Hispanic Center all agree that the undocumented population increases by between 225,000 and 667,000 per year, with the highest growth rates in the 1990s.

Second, in any event, Mr. Fein rejects the idea that we should prefer legal to undocumented migration. This position is equally untenable. Undocumented immigrants are less likely to pay federal taxes (90 percent of legal immigrants do so, compared to 60 percent of undocumented immigrants), and far more likely to be victimized by unscrupulous employers who use the threat of deportation as a tool of labor market coercion. Thus, while economists are virtually unanimous that immigration is generally good for the U.S. economy, undocumented migration is less beneficial and may even depress wages in some sectors. Undocumented workers—not a security threat themselves—also rely on fake documents and smugglers, supporting an illegal infrastructure which has harmful spill-over effects in the fights against drugs and terrorism.

Finally, Mr. Fein is convinced that legalization would not be accompanied by effective policies to reduce future undocumented flows. The historical record supports him on this point. Yet there are many reasons to believe that the political will to control undocumented inflows is emerging in the post-9/11, NAFTA era, including most notably the broad left-right interest group coalition which supported tough enforcement provisions in S.2611 last year. Certainly, Mr. Fein is correct that legalization without robust worksite and border enforcement and visa reforms would have limited benefits; comprehensive immigration reform is a package deal.

Bruce Fein

April 2, 2007

Bruce Fein

The immigration crisis in the United States is more contrived than genuine.

Approximately twelve million aliens live and work illegally in the United States.

That number has remained constant for at least thirty-two years since I sat as a representative of the Department of Justice on an inter-agency task force on illegal immigration in 1975. The landmark Immigration Reform and Control Act of 1986 legalized millions and upgraded sanctions for hiring illegals, yet the facts on the ground remained unchanged. Ditto for the harsh immigration laws of the 1990s.

If the twelve million illegals were legalized through citizenship, as championed by Mr. Rosenblum, they would instantly be replaced by twelve million new illegals anticipating a new legalization initiative based on the same reasons Rosenblum articulates. Nothing would have changed, but for a larger number of naturalized citizens with ever-weaker understandings of the Constitution and of civic duties required for democracy to flourish.

Mr. Rosenblum can be summoned against himself to prove my point.  Illegal immigration is fueled, he correctly asserts, by the globalization of labor and the unwillingness of the Congress or the president to enforce laws that would eliminate “the job magnet driving most undocumented flows.” But granting citizenship to the illegals will not diminish labor globalization. It will not spur the government of the United States to more than episodic raids on employers of illegal aliens because their employments are mutually profitable.

The United States will forever display ambivalence over illegal immigration. On the one hand, the illegals characteristically share traits Americans admire: ambition, industry, pluckiness, enterprise. On the other hand, they offend the rule of law, a civic religion in America. That ambivalence will invariably enervate the enforcement of immigration restrictions, and yield a policy of muddle. Yet nothing better can be achieved given the political culture of the United States.

Mr. Rosenblum frets that undocumented migrants drive down wages.  But that downward pressure would remain whether or not they were legalized, as supply and demand curves teach. He also worries that undocumented workers endanger national security by supporting an illegal infrastructure and pool of underground workers “which may obscure would-be terrorists.” Mr. Rosenblum’s national security fright has escaped the 9/11 Commission, the House and Senate Intelligence Committees, the Director of National Intelligence, the director of the Central Intelligence Agency, and, the director of the FBI. None has championed naturalized citizenship for illegal aliens as a counter-terrorism weapon.

As Winston Churchill would have quipped, the muddle over twelve million illegal aliens in the United States is the worst of all possible worlds, except for all of the earthbound alternatives.

Marc R. Rosenblum

April 1, 2007

Marc R. Rosenblum

Immigration reform will fail if it leaves 12 million undocumented immigrants living and working in the United States. Undocumented migrants drive down wages, and they threaten national security by supporting an illegal infrastructure and providing a pool of underground workers which may obscure would-be terrorists. Today’s undocumented would also undermine tomorrow’s enforcement. Millions of undocumented employees make non-credible the threat of worksite enforcement, and create strong incentives for bad-apple employers to continue flouting the law. Their continued presence would also send a signal to others that life as an undocumented immigrant here remains a viable option.

Only three options exist to resolve this problem. Hardliners believe they should be rounded up and deported, but this is simply a dark fantasy. Deporting 12 million people would require a caravan of busses stretching from San Diego to Alaska, and would cost $240 billion. It would also greatly disrupt our economy and destroy millions of U.S. citizen families—the Pew Hispanic Center estimates that 3.5 million U.S. citizens live in families headed by undocumented immigrants. Others argue that by denying migrants access to schools, jobs, and social services we can drive them to self-deport. Yet this would be equally disruptive, and it is unlikely to succeed. Immigrants have already risked their lives to come here, and most have lived here over five years and have deep roots. Rather, the “attrition” approach is likely to drive immigrants deeper underground.

This leaves legalization as the only practical solution, and the only real question is whether we find “amnesty” so morally offensive that we accept a bad policy in order to avoid rewarding migrants who broke the law. Proposals in Congress would address this concern by imposing significant penalties and requiring undocumented migrants to spend years in conditional legal status before getting on a path to citizenship.

Yet phrasing the question this way ignores the deeply structural and systemic causes of undocumented migration. For decades, the United States has failed to issue visas consistent with family—and employment—based demand, and failed to pass or enforce laws eliminating the job magnet driving most undocumented flows. More recently, NAFTA and other international institutions encourage globalization of trade and investment without recognizing that these links promote globalization of labor as well. All American employers, consumers, and lawmakers—all of us—share the “blame” for undocumented migration, and it would be grossly unfair to ask immigrants alone to bear the costs of fixing this broken system.

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