Kinder, Gentler, and Foolish

By Dan Cadman on December 10, 2013

There is a somewhat bizarre article in the November-December issue of Foreign Affairs magazine, entitled "A Kinder, Gentler Immigration Policy: Forget Comprehensive Reform — Let the States Compete". While you will need to register to see the entire article, registration is free.

The piece was written by a couple of economics professors, one of whom is also a professor of law and a senior fellow at the Council of Foreign Relations — presumably why the article ended up in print, because in my view it doesn't otherwise meet the standard one usually finds in that journal.

I say "somewhat bizarre" because the authors have put together a curious admixture of facts and unproven assertions to arrive at a preposterous and untenable conclusion. For instance, they are clear-headed enough to recognize that an omnibus "reform" bill of the sort passed by the Senate some months ago would not dissuade future would-be illegal immigrants from crossing our borders to once again begin a backlog of persons expecting another serial amnesty at some indefinite point in the future.

And yet, they also assert that confronted with a phased-in approach to legalization of their status, the give-or-take 11 million aliens already in the United States "would likely choose to remain illegal rather than gamble on the distant promise of naturalization." Having spent many years working as both a field and headquarters immigration officer, I can state with total certainty that this notion is preposterous. Illegal aliens have nothing to lose by seeking amnesty.

Even if in the long run the application were to fail by being denied (unlikely in this administration) during all the time of its pendency — many, many months, and perhaps years if appeals are filed — any illegal who applies joins a protected class who cannot be arrested for being here illegally, cannot be deported, and are entitled to live and work in the country legitimately. Why would they not choose this path? Have they become so elitist that if naturalization doesn't come on their terms they don't want it at all? Do they also only drink their lattes from Starbucks and turn their nose up at McDonald's coffee?

The authors also assert that "Given these realities [that immigration reform will not stop the flow of illegal aliens and will result in "increasingly draconian treatment of them"] the United States should stop attempting to eliminate illegal immigrants."

I beg to differ, on any of several grounds. First, they should not conflate amnesty with reform. Second, reform must include a realistic approach to immigration law enforcement that extends past the physical border and include the vast interior of the United States, including its major urban areas. It must also include a recognition that port-of entry procedures and enforcement are out of date and sorely in need of a fresh approach (nearly half of all illegal aliens in the United States originally arrived legally through those ports). It must certainly include an honest and comprehensive system to curb unauthorized employment (including arrests at the workplace, which this administration has proscribed); and there must be renewed attention to the need to interdict use of citizens' and lawful residents' documents and identities by illegal aliens, and to establish workable mechanisms in the law to punish those who misuse such identities and documents.

These are just a few of the baselines that would permit the kind of reform that actually might result in a diminution of the number of individuals who seek to illegally enter or stay in the United States. After all, aliens are rational human beings who carefully calculate risk versus benefit. Don't think that's true? Consider that, as the authors themselves point out, "whatever drop-off has occurred is mostly the result of the economic slowdown in the United States and will not prove permanent."

Putting aside the economic downturn, for quite some time now on the risk-benefit continuum, the benefits of remaining illegally have significantly outweighed the risks of apprehension and removal. The challenge for law- and policy-makers is to create for illegal aliens a situation where the risks are substantial, and the chance of obtaining decent jobs on a permanent basis is slim. Only when confronted with such circumstances will many aliens make the decision that entering (or remaining) illegally is contrary to their own interests.

But strangely, the authors arrive at a different conclusion. Instead they suggest a competition among the states to encourage illegal aliens to settle within their borders. "As [unwelcoming states] lose badly needed cheap labor to the latter [welcoming states], the political equilibrium will shift toward those who favor policies that help retain and attract illegal immigrants."

The notion is downright shocking. But let's be clear, this isn't just a philosophical debate. Such states would be encouraging a permanent underclass that would have no legal basis to ensure equitable treatment in the workplace; they would be establishing a climate in which alien smuggling would prosper in all of its seamy forms, including unsafe sweatshops, peonage, and involuntary servitude.

In inviting in those who "only want to live and work" (to use the popular mantra) states would also be creating a safe haven for transnational gangs such as MS-13 that prey on the underclass through violence, drugs, extortion, and prostitution to service this permanent underclass.

They would find themselves awash in a sea of fraudulent documents (because, after all, employers must still at least facially abide by federal immigration verification law). And finally, they would find their jails and their social welfare systems strained to the breaking point.

So, if states take this approach then let them also be honest enough to forego the multiplicity of programs, grants, matching funds, etc. now provided by our generous, deep-pocketed Uncle Sam on the basis that they should not be forced to bear the burden of a "federal" problem. Sound attractive to anyone? I wouldn't think so.

To my way of thinking, encouraging reckless indifference to the law is itself a form of lawlessness. Viewed from this perspective, it is a curious position for professors (one of whom teaches law and is presumably, therefore, an attorney) to take, and raises interesting questions about the boundaries of propriety when taking advocacy positions simply because they do not care for certain laws and wish they did not exist.