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A Kinder, Gentler Immigration Policy

Forget Comprehensive Reform -- Let the States Compete

Authors: Jagdish Bhagwati, and Francisco Rivera-Batiz
November/December 2013
Foreign Affairs

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Ever since Congress passed the Immigration Reform and Control Act, in 1986, attempts at a similar comprehensive reform of U.S. immigration policies have failed. Yet today, as the Republican Party smarts from its poor performance among Hispanic voters in 2012 and such influential Republicans as former Florida Governor Jeb Bush have come out in favor of a new approach, the day for comprehensive immigration reform may seem close at hand. President Barack Obama was so confident about its prospects that he asked for it in his State of the Union address in February 2013. Now, the U.S. Senate looks poised to offer illegal immigrants a pathway to citizenship.

But a top-down legislative approach to immigration could nonetheless easily die in Congress, just as the last serious one did, in 2007. Indeed, the president's domestic problems with health care and foreign problems with Syria have already cast a shadow over the prospects for reform.

Even if a bill did manage to pass, the sad fact is that it would work no better than the 1986 law did. That act was based on the assumption that punishments, such as sanctions on employers and heightened border security, and incentives, such as an increase in the number of legal immigrants allowed to enter the country and amnesty for illegal immigrants already there, could eliminate illegal immigration altogether. That assumption proved illusory: the offer of amnesty may have temporarily reduced the stock of illegal immigrants, but it was not enough to eliminate it. Nor did employer sanctions and border enforcement reduce the flow of new illegal immigrants.

The challenges to eliminating illegal immigration are, if anything, greater today than they were in 1986. For one thing, in order to make today's proposals politically feasible, their authors decided to offer illegal immigrants not immediate unconditional amnesty but a protracted process of legalization. Confronted with this approach, a large share of the estimated 11 million illegal immigrants now living in the United States would likely choose to remain illegal rather than gamble on the distant promise of naturalization.

Nor would reform dissuade new illegal immigrants from joining those already in the country. Extrapolating from the recent drop in apprehensions near the Rio Grande, some analysts have argued that since the flow of illegal immigrants has already slowed to a trickle, the issue has lost its urgency. This notion is misguided. One cannot focus just on the area around the Rio Grande, since only half of all illegal immigrants residing in the United States entered the country by unlawfully crossing the U.S.-Mexican border, according to a 2006 study by the Pew Research Center. Moreover, whatever drop-off has occurred is mostly the result of the recent economic slowdown in the United States and will not prove permanent. As long as wages in the United States greatly outstrip those in poor countries, the United States will remain a mecca for potential immigrants, legal and illegal.

Not only would immigration reform fail to achieve its goal of eliminating illegal immigrants; it would also lead to increasingly draconian treatment of them. In order to appease anti-immigrant groups, the Senate's immigration reform bill provides for stricter enforcement of the U.S.-Mexican border, along with $40 billion in funding. But past experience suggests that such regulations are an exercise in futility: they do little to slow the influx of illegal immigrants while greatly increasing the risk to their lives as they try to cross the border over more dangerous terrain, aided by unscrupulous smugglers who may abandon them mid-journey.

Given these realities, the United States should stop attempting to eliminate illegal immigrants -- since that will never work -- and focus instead on policies that treat them with humanity. Doing so would mean adopting a variety of measures to diminish the public's hostility to illegal immigrants. Principal among them would be a shift from a top-down approach to a bottom-up one: letting states compete for illegal immigrants. States with laws that were unfriendly to illegal immigrants would lose them and their badly needed labor to states that were more welcoming. The result would be a competition that would do far more to improve the treatment of illegal immigrants than anything coming from Washington.

IMPOSSIBLE DIFFICULTIES

Americans can be schizophrenic when it comes to illegal immigration, suffering from a sort of right-brain, left-brain problem. The right brain sympathizes with illegal immigrants, since they are immigrants, after all, and the United States was founded on immigration. But the left brain fixates on their illegality, which offends Americans' respect for the rule of law. Negotiating a viable compromise between those who wish to throw illegal immigrants out and those who wish to embrace them has always proved exceptionally difficult. As the historian Mae Ngai has shown, U.S. immigration policy in the 1920s and 1930s was as conflicted as it is today, with proponents of deportations pitted against pro-immigrant humanitarian groups.

Further complicating matters is Americans' sense of fairness. Liberals have called on Congress to offer illegal immigrants a path to citizenship, but unlike most other countries, the United States has an enormous backlog of potential immigrants who have dutifully lined up for entry -- an issue that Spain, for example, did not face when it granted its illegal immigrants amnesty in 2005. Many Americans consider it unfair to let immigrants who have broken the law join the same line that those who followed the rules are in. The proponents of amnesty have, in consequence, cluttered up their proposed policy with various restrictions and requirements that make it far less attractive than a forthright granting of full citizenship.

Like past reform proposals, the current one offers illegal immigrants a long road to legality. But the longer the process, the greater the risk that a new Congress will reverse the old. Many illegal immigrants may prefer not to accept that risk and instead stay illegal. Furthermore, as the immigration scholars Mark Rosenzweig, Guillermina Jasso, Douglas Massey, and James Smith have shown, around 30 percent of U.S. immigrants achieve legal status despite having violating immigration laws in the past. Taking these factors into account, it is reasonable to predict that of the estimated 11 million illegal immigrants, only half would take an offer of amnesty, perhaps less.

Just like the chimera of legalizing away the stock of illegal immigrants, the notion that the flow of new illegal immigrants can be shut off is also deeply impractical. For instance, attempts at expanding legal immigration in the hope that it will reduce the incentive for illegal immigration would require, at minimum, vastly expanded legal admissions. Yet even though trade unions have given up their long-standing opposition to legalizing illegal immigrants -- which they figure will boost their membership -- they oppose significantly expanding legal admissions. Unions have long blamed immigration for the stagnation of workers' wages, just as they have blamed outsourcing and trade liberalization. In fact, the AFL-CIO recently suggested that it should be involved in determining how many legal guest workers the United States will admit in the future. When President George W. Bush proposed a more expansive guest-worker program, unions helped kill the measure, and they would fiercely fight any efforts to liberalize legal immigration this time, too.

It is also dubious that draconian enforcement measures, at the border or internally, would actually intimidate would-be illegal immigrants, no matter what mix of punishments and inducements Congress legislates. Unlike in 1986, almost every U.S. immigrant is now more secure: their ethnic compatriots will, as they already do, go to bat for better treatment, raising their voices against such measures.

But the biggest hurdle that immigration reform faces is that as long as immigration restrictions exist, people will continue to enter the United States illegally. The government can send as many Eliot Nesses to Chicago to nab as many Al Capones as it wants, but the bootlegged liquor will keep flowing across the Canadian border as long as Prohibition remains in place.

IMMIGRATION INHUMANITY

Short of dismantling all border restrictions, then, no policy could magically eliminate illegal immigration. Yet not only would a reform bill be ineffective; it could also be harmful. If a comprehensive reform bill were passed, there is a serious danger that policymakers, operating on the flawed assumption that there should then be no reason for illegal immigrants to exist, might enact even harsher measures against them.

In fact, merely attempting to secure support for a reform bill is certain to harm illegal immigrants. Their experiences under President Bill Clinton and Obama have not been reassuring. Although Democrats have generally been more sympathetic to illegal immigrants than have Republicans, both Clinton and Obama, in their attempts to secure bipartisan consensus on immigration reform, implemented ruthless measures against illegal immigrants.

In the wake of the Immigration Reform and Control Act, the U.S. government ramped up enforcement at the border, which reached new heights during the Clinton administration. Ditches were built and fences constructed. To seal off common routes of entry into the United States, the government mounted military-style actions with names that seemed straight out of a war room: Operation Blockade, in El Paso in 1993; Operation Gatekeeper, in San Diego in 1994; and many more. The border security budget skyrocketed, rising from $326 million in 1992 to $1.1 billion by the time President George W. Bush took office, in 2001. The number of U.S. Border Patrol agents stationed at the southwestern border nearly tripled. In the end, these measures did little to stem the inflow. The demographer Jeffrey Passel of the Pew Research Center has estimated that the average net annual influx of illegal immigrants crossing the Rio Grande rose from 324,000 in the first half of the 1990s to 654,800 in the second half of the decade.

What stricter enforcement did do was force illegal immigrants to bypass safer crossing points and travel through the desert instead. Desperate immigrants made no secret of their desire to keep trying to sneak across the border despite heightened enforcement, often attempting again and again until they got through. But crossing the desert meant that they had to pay smugglers, known as coyotes, who left carloads of illegal immigrants for dead when they feared apprehension by U.S. Border Patrol personnel. At best, the Clinton administration's policies had a marginal impact on illegal border traffic and led to a major decline in the welfare of those trying to enter the country illegally. They also failed to achieve their larger objective of getting legislation through Congress; the "keep them out" and "throw them out" lobbies were too strongly opposed to any compromise.

Obama has ramped up border enforcement, too, but he has also deported record numbers of illegal immigrants already living in the United States. In 2011, he expanded the Secure Communities initiative, a joint effort between state and local governments -- the federal authorities have even ordered uncooperative states, such as New York, to fall in line -- that uses integrated databases to track down illegal immigrants. According to official statistics, the number of deportations (excluding apprehensions at the border itself) has risen under Obama, to 395,000 in 2009. In 2001, under George W. Bush, deportations numbered only 189,000.

The focus on border enforcement is misguided. In part, it owes to the false equation of lax border control with the influx of terrorists. There is little evidence of that link: even the 9/11 hijackers entered the United States legally. Moreover, correcting for the effect of the recession on attempted crossings, it is clear that the impact of Obama's policies has been far from dramatic in deterring illegal immigration. But the distress caused to illegal immigrants has been great. As a 2011 report from Human Rights Watch detailed, tens of thousands of immigrants are shuffled from jail to jail awaiting deportation. Once again, the country has gained little and lost much.

RACE TO THE TOP

With top-down immigration reform unworkable and inhumane, Americans need to shift their focus to treating their inevitable neighbors with humanity. That objective cannot be pursued through Washington. It must come from elsewhere: competition among states. States that harass illegal immigrants, such as Alabama, Arizona, Georgia, Indiana, and South Carolina, will drive illegal immigrants to more welcoming states, such as Maryland, New York, Utah, and Washington. As the former lose badly needed cheap labor to the latter, the political equilibrium will shift toward those who favor policies that help retain and attract illegal immigrants.

Of course, states cannot intrude on the parts of immigration enforcement over which the federal government has exclusive authority, such as border control and civil rights. But there are a number of steps states can take to make life easier for illegal immigrants, such as issuing them driver's licenses and making accessible to them everything from health care to university scholarships.

Illegal immigrants are already voting with their feet, leaving or bypassing states that treat them harshly and flocking to those with more benign policies. In 2011, hours after a federal judge in Alabama upheld most of the state's strict immigration law, illegal immigrants began fleeing. Frightened families, The New York Times reported, "left behind mobile homes, sold fully furnished for a thousand dollars or even less." The article continued: "Two, 5, 10 years of living here, and then gone in a matter of days, to Tennessee, Illinois, Oregon, Florida, Arkansas, Mexico -- who knows? Anywhere but Alabama."

Ample statistical evidence demonstrates this pattern. From 1990 to 2010, when tough border-enforcement policies (which naturally focused on the border states) were in vogue, Arizona, California, New Mexico, and Texas saw their collective share of illegal immigrants decline by 17 percent. In California alone, the percentage of all illegal immigrants residing there fell from 43 percent to 23 percent. Similarly, the economists Sarah Bohn, Magnus Lofstrom, and Steven Raphael have calculated that Arizona's 2007 Legal Arizona Workers Act, which banned businesses from hiring illegal immigrants, led to a notable decline in the proportion of the state's foreign-born Hispanic population.

The resulting blow to economic activity has often been drastic; employers in agriculture and construction, for example, regularly complain about the absence of workers. Fortunately, however, as business interests begin to agitate in favor of easing up on illegal immigrants, state capitals will start taking note. Already, many groups in the unwelcoming states have begun to question their states' draconian immigration enforcement laws and argue for more modest measures. After Alabama passed its immigration law, for example, business leaders complained to lawmakers about the resulting labor shortages. After the Legal Arizona Workers Act went into effect, in 2008, the state's contractors' trade association even joined civil rights groups in seeking the law's repeal. That same year, the U.S. Chamber of Commerce filed a lawsuit challenging the constitutionality of an Oklahoma law that required employers to verify the work status of their employees.

As this dynamic plays out, states will begin to compete for illegal immigrants, who will then face less harassment and be able to better integrate into their communities. Democrats and Republicans who care about human rights should welcome this change. More important, so should Republicans who prize states' rights. A race to the top in the treatment of illegal immigrants is a viable path to reform that would greatly advance human rights in the United States.

There are other ways to improve the lives of illegal immigrants that also do not involve Washington. Consider the problem of Mexicans who risk their lives traveling through the desert while attempting to cross the border and who occasionally damage the property of Texan ranchers. With no method to recoup their losses, the affected ranchers found it tempting to join forces with the Minutemen vigilantes who used to patrol the border. To reduce ranchers' hostility toward illegal immigrants, the Mexican government should set up a fund that compensates ranchers who can establish credible claims of damage. Since the stories of such damages tend to outstrip the reality, the fund need not be particularly large to go a long way in defusing the hostility.

Another way to improve the plight of illegal immigrants would be for Mexico to help pay for the education and medical expenses of those illegal immigrants coming from Mexico that are otherwise borne by the U.S. government. Although a number of studies show that illegal immigrants represent a net contribution to U.S. government coffers, the common perception that American taxpayers must bear these costs and that Mexico should share some of the burden of its own citizens breeds resentment. Were the Mexican government to make such a contribution, it would serve as a gesture of goodwill that could help reduce the hostility toward illegal immigrants.

"Give me your tired, your poor, your huddled masses," reads the poem by Emma Lazarus that adorns the Statue of Liberty, which once welcomed the millions of immigrants arriving at Ellis Island. It is well past time to revive that sense of humanity, and the diverse recommendations outlined here can help the United States do just that. Whether or not they come with Washington's permission, immigrants to the United States nonetheless deserve the compassion Lazarus promised.

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