National Review, March 22, 2004
The issue of what to do about illegal aliens living in the United States is often presented as a Hobson's choice: either launch mass roundups to arrest and deport 9-million-plus people, or define away the problem through legalization.
The second option - amnesty - is the one President Bush chose in his January 7 speech on immigration. It also underlies many congressional proposals, from the McCain-Kolbe-Flake and Hagel-Daschle bills in the Senate to the House Democratic leadership's proposal unveiled in late January.
Few among the political elite entertain any alternative. At a recent panel discussion on the president's immigration proposal, Margaret Spellings, the president's chief domestic policy adviser, reacted with a demure chuckle to the suggestion that we enforce the law.
The commentariat is more explicit. Not content to politely ignore the notion of enforcing the law, the Wall Street Journal, for instance, has flatly asserted that it's not possible, a 'fantasy' of the 'extreme,' 'nativist,' and 'restrictionist' Right. Meanwhile, the Manhattan Institute's Tamar Jacoby wrote in The New Republic of 'futile law enforcement' and how 'the migrant flow is inevitable.'
Fortunately for America there is a third way, between the politically impossible and disruptive approach of mass roundups on one hand, and the surrender of our sovereignty by the open-borders Left and its libertarian fellow-travelers on the other. This third way is attrition, squeezing the illegal population through consistent, across-the-board law enforcement to bring about an annual reduction in the illegal population rather than the annual increases we have seen for more than a decade. Over a few years, the number of illegal aliens would drop significantly, shrinking the problem from a crisis to a manageable nuisance.
Of Velvet Fists
This isn't just a wonkish daydream. There is significant churn in the illegal population, which we can use to our advantage. According to a 2003 INS report, thousands of people stop being illegal aliens each year. From 1995 to 1999, an average of 165,000 a year went back home; the same number got some kind of legal status, about 50,000 were deported, and 25,000 died, for a total of more than 400,000 people each year subtracted from the resident illegal population. The problem is that the average inflow of new illegal aliens was nearly 800,000, swamping the outflow and creating an average annual increase of close to 400,000.
The solution, then, is to increase the number of people leaving the illegal population and to reduce the number of new illegal settlers, so that there is an annual decline in the total number. This is a measured, Burkean approach to the problem. It doesn't aspire to an immediate, magical solution to a long-brewing crisis, but rather helps us back out of an untenable situation that we helped create through our inattention to the law.
This begs the natural question: "But aren't we already enforcing the law?" If not, as a Wall Street Journal editorial has asked, "Then what is it we've been doing for 20 years now?" The answer lies in the old Soviet joke: "We pretend to work and they pretend to pay us."
Since 1986, Congress has passed muscular immigration laws and then made sure that they were not enforced. In that year, the Immigration Reform and Control Act (IRCA) was enacted, which traded an illegal-alien amnesty for a first-ever ban on the employment of illegal aliens. The point was to demagnetize the strong pull of good jobs - the main reason illegals come here in the first place.
More than 2.7 million illegals got legalized up front, with promises of tighter enforcement in the future. But the law itself was hobbled such that it became unworkable. Only if employers had a means of verifying the legal status of new hires against Social Security or INS databases could the law succeed - but Congress refused to require the INS to start developing such a system. Instead, employers were expected to do the verifying themselves, by examining a bewildering array of easily forged documents, and then they were threatened with discrimination lawsuits by the Justice Department if they looked too hard. It would be hard to imagine a system more obviously intended to fail.
Eventually, even this handicapped setup was sabotaged. After catching flak for workplace raids, the INS in 1998 decided to try a new approach to enforcing the hiring ban. Instead of raiding individual employers, Operation Vanguard sought to identify illegal workers at all the meatpacking plants in Nebraska through audits of personnel records. The INS then asked to interview those employees who appeared to be unauthorized - and the illegals ran off. The procedure was remarkably successful, and was meant to be repeated every two or three months until the whole industry was weaned from dependence on illegal labor.
Local police were very pleased with the results, but employers and politicians vociferously criticized the very idea of enforcing the immigration law. Nebraska's governor Mike Johanns organized a task force to oppose the operation; the meat packers and the ranchers hired his predecessor, Ben Nelson, to lobby on their behalf; and, in Washington, Sen. Chuck Hagel made it his mission in life to pressure the Justice Department to stop. The INS took the hint, and all but gave up on enforcing the hiring ban nationwide.
Nor is this the only example of tough-looking laws that go unenforced. In 1996, Congress passed a large immigration bill, which included a provision that sought to punish long-term illegal residence by barring illegals from future re-entry for three or ten years, depending on the length of the initial unlawful stay. Its scope was limited in any case, since it applied only to people who actually left the country and then tried to return, but it was denounced at the time by the usual suspects as 'radical' and 'draconian.' But an examination of the law's results shows that, in its first four years, the bar prevented fewer than 12,000 people from re-entering the United States.
Even the expansion of border enforcement follows this pattern of ineffectuality. The Border Patrol has doubled in size since 1996, accounting for the lion's share of increased resources for enforcement. Its 10,000 agents are better equipped and doing a better job than ever before. But since, as any agent will tell you, the Border Patrol alone can't control illegal immigration, there's little danger that such increased capacity will actually curtail the flow. Again, a policy that appears tough, but isn't - a velvet fist in an iron glove.
Why does this happen? It is a manifestation of the yawning gap between public and elite opinion on immigration. The laws need to look tough, with promises of robust enforcement, to satisfy public concerns. But immigration's relatively low political importance for most people ensures that the elite preference for loose enforcement will be satisfied in the end.
But isn't the elite right in this case? Isn't immigration inevitable? Hardly. No one wakes up Paraguay and decides, "Today, I will move to Sheboygan!" Immigration can take place only if there are networks of relatives, friends, and countrymen directing immigrants to a particular place. And these networks are a creation of government policy, either through proactive measures or through permitting networks to grow through non-enforcement of the law.
As an example, look at the Philippines and Indonesia. Both are populous, poor countries on the other side of the world, and yet the 2000 Census found about 19 times more Filipino immigrants in the United States than Indonesians, 1.4 million versus 73,000. Why? Because we ruled the Philippines for 50 years as a colony and maintained a major military presence there for another 50 years, allowing extensive networks to develop, whereas we have historically had little to do with Indonesia.
Granted, interrupting such networks is harder than creating them, but it is not impossible - after all, the trans-Atlantic immigration networks from the turn of the last century were successfully interrupted, and atrophied completely. And, to move beyond theory, the few times we actually tried to enforce the immigration law, it worked - until we gave up for political reasons.
During the first several years after the passage of the IRCA, illegal crossings from Mexico fell precipitously, as prospective illegals waited to see if we were serious. Apprehensions of aliens by the Border Patrol - an imperfect measure but the only one available - fell from more than 1.7 million in FY 1986 to under a million in 1989. But then the flow began to increase again as the deterrent effect of the hiring ban dissipated, when word got back that we were not serious about enforcement and that the system could be easily evaded through the use of inexpensive phony documents.
As I've written in these pages before, when we stepped up immigration enforcement against Middle Easterners (and only Middle Easterners) in the wake of 9/11, the largest group of illegals from that part of the world, Pakistanis, fled the country in droves to avoid being caught up in the dragnet.
And in an inadvertent enforcement initiative, the Social Security Administration in 2002 sent out almost a million 'no-match' letters to employers who filed W-2s with information that was inconsistent with SSA's records. The intention was to clear up misspellings, name changes, and other mistakes that had caused a large amount of money paid into the system to go uncredited. But, of course, most of the problem was caused by illegal aliens lying to their employers, and thousands of illegals quit or were fired when they were found out. The effort was so successful at denying work to illegals that business and immigrant-rights groups organized to stop it and won a 90 percent reduction in the number of letters to be sent out.
War of Attrition
We know that when we actually enforce the law, eroding the illegal-immigration population is possible. So, what would a policy of attrition look like? It would have two key components. The first would include more conventional enforcement - arrests, prosecutions, deportations, asset seizures, etc. The second would require verification of legal status at a variety of important choke points, to make it as difficult and unpleasant as possible to live here illegally.
As to the first, the authorities need to start taking immigration violations seriously. To use only one example, people who repeatedly sneak across the border are supposed to be prosecuted and jailed, and the Border Patrol unveiled a new digital fingerprint system in the mid '90s to make tracking of repeat crossers possible. The problem is that short-staffed U.S. attorneys' offices kept increasing the number of apprehensions needed before they would prosecute, to avoid actually having to prosecute at all.
It would be hard to exaggerate the demoralizing effect that such disregard for the law has on the Homeland Security Department's staff. Conversely, the morale of immigration workers would soar in the wake of a real commitment to law enforcement. We've already seen a real-world example of this, too. I met with deportation officers in a newly formed 'fugitive operations team' in Southern California who, unlike other immigration personnel I have spoken with, were actually excited about their jobs. They still have gripes, but the clear political commitment to locating and deporting fugitive aliens communicates to them that their work is genuinely valued by their superiors all the way up to the White House.
Other measures that would facilitate enforcement include hiring more U.S. Attorneys and judges in border areas, to allow for more prosecutions; passage of the CLEAR Act, which would enhance cooperation between federal immigration authorities and state and local police; and seizing the assets, however modest, of apprehended illegal aliens.
But these and other enforcement measures will not remove most of the illegal population - the majority of illegals will have to be persuaded to deport themselves. Unlike at the visa office or the border crossing, once aliens are inside the United States, there's no physical place, no choke point at which to examine whether someone should be admitted. The solution is to create 'virtual chokepoints' - events that are necessary for life in a modern society but are infrequent enough not to bog down the business of society.
This is the thinking behind the law banning the employment of illegal aliens - people have to work, so requiring proof of legal status upon starting a job would serve as such a virtual choke point. As discussed above, in the absence of a verification mechanism, such a system couldn't succeed. But the president signed into law at the end of last year a measure to re-authorize and expand the verification pilot programs that immigration authorities have been experimenting with since the mid 1990s.
Building on this fledgling system, we need to find other instances in which legal status can be verified, such as getting a driver's license, registering an automobile, opening a bank account, applying for a car loan or a mortgage, enrolling children in public schools, and getting a business or occupational license.
An effective strategy of immigration law enforcement requires no booby traps, no tanks, no tattoos on arms - none of the cartoonish images invoked in the objections raised routinely by the loose-borders side. The consistent application of ordinary law-enforcement tools is all we need. 'Consistent,' though, is the key word. Enforcement personnel - whether they are Border Patrol agents, airport inspectors, or plainclothes investigators - need to know that their work is valued, that their superiors actually want them to do the jobs they've been assigned, and that they will be backed up when the inevitable complaints roll in.
And, finally, this isn't root-canal Republicanism, bitter medicine we swallow for the greater good. Enforcement of the immigration law may not be popular among the elite, but actual voters across the political spectrum all are for it. As Alan Wolfe wrote in One Nation, After All, the difference between legal and illegal immigrants "is one of the most tenaciously held distinctions in middle-class America; the people with whom we spoke overwhelmingly support legal immigration and express disgust with the illegal variety."
If only our political leadership felt the same way.
Mark Krikorian is executive director of the Center for Immigration Studies.