Balkinization: Immigration Reform I: Looking Back

Immigration Reform I: Looking Back

Anonymous

Yesterday the Senate voted 64-35 to revive the comprehensive immigration reform (CIR) bill declared all but dead two weeks ago. This most recent effort by the President and the Senate leadership to salvage the measure reflects the urgency of the immigration issue—the need to address a status quo (of record undocumented immigration and an antiquated bureaucracy not up to the task of responding to today’s market realities) that President Bush is quite right to label unacceptable. The latest test vote also reflects the amount of political capital that has been poured into the fraught and complex negotiations—capital that lawmakers, whose supply is limited, do not want to see squandered.

A final vote in the Senate, much less an actual piece of legislation, are far from secure, particularly given the controversy brewing in the House. But whether the Congress acts this summer or not, the need for a system overhaul will not disappear, and so the conversation over what immigration reform should entail will continue.

The pending reform leaves virtually no piece of the immigration system untouched, but the issue that has unleashed public passions and created the most complications in Senate negotiations over the last year has been what to do about unauthorized immigration. In tackling this problem, we face a backward-looking question: what should be done about the estimated 12 million undocumented immigrants in the United States today? And we must answer a complementary forward-looking question: how can we prevent such a large undocumented population from forming in the future?

In this post, I answer the backward looking question by articulating what I see as the key and insufficiently articulated justification for the legalization program proposed in the Senate bill—that illegal immigration is, in large part, a problem of our own making, rendering it primarily an integration issue rather than a law-and-order issue. In two subsequent posts, I will address the guest worker proposal—the answer to the forward-looking question offered by the President and the Senate both.

To both questions, the right answers will involve the United States taking responsibility for the economic and social role we play in an interdependent global economy by ensuring effective integration of immigrants into American society—an argument I advance in a forthcoming law review article. This conclusion may seem counterintuitive, so let me explain.

The legalization program at the heart of the Senate bill is both intensely pragmatic and thoroughly high-minded. The bill would allow unauthorized migrants who pay a fine, cover processing fees, and submit to a criminal background check to obtain a five-year “Z” visa (which could eventually lead to permanent residency and citizenship thirteen years or so from now). Implicit in this arrangement is the recognition that most immigrants who are here today without legal status are structurally embedded in our society and are therefore here to stay. Most Americans appear to accept this reality on some level; national polls consistently find, talk radio notwithstanding, that a majority of Americans (60%-85%) favors legalization of some sort, and only a very small percentage supports attempts to deport the entire unauthorized population—a spectacle that would be difficult to pull of and impossible for most Americans to stomach.

This realization transforms the backward looking question into an integration issue. If immigrants are here to stay, national security, public health, safety, and welfare, and humanity all demand that we enable them to become open, contributing members to our society and that we facilitate their long-term assimilation.

It is hard to imagine a greater obstacle to immigrant integration than unlawful status. Such status facilitates exploitative labor practices; creates great instability in the lives of families and communities made up of illegal and legal immigrants and U.S. citizens; leaves immigrants reluctant to interact with officialdom, compromising public health and safety; engenders the kind of fear that leads parents to keep their kids out of school to avoid apprehension by ICE agents; and prevents high school students who grew up in the United States and have bright prospects, but no legal status, from realizing their potential, compromising upward mobility.

The persistence of an undocumented population also undermines confidence in government, erodes support for immigration generally (a social necessity and economic boon as many economists and demographers point out), and engenders suspicion of legal residents and U.S. citizens who resemble immigrants in appearance, name, or accent, particularly Latinos, given the close association of Mexican immigrants with illegality.

But legalization is justified by more than such pragmatics. Implicit in legalization is the recognition that the undocumented crisis is a problem of our own making—that illegal immigration does not happen to us, it happens because of us. “Amnesty” is not an appropriate label for what legislators are trying to do, because we cannot forgive others for our own mistakes. What are those mistakes? Namely—maintaining an admissions system totally out of whack with the needs of our labor market (the current preference system admits only 5000 unskilled workers per year, but economists estimate that we need approximately 500,000 such workers to keep industries like construction, food preparation, meat packing, and domestic services functioning).

And it is not just big business looking for cheap labor, and the federal government whose feckless enforcement has fed that desire, who are responsible. It is also the “fault” of consumers who want cheap goods, the millions of Americans who have benefited from the housing boom built by immigrant labor, and the general educational and social advancements in the United States that have made unskilled workers more and more scarce domestically, even as they exist in large number across our southern border, where wages are dramatically lower than they are here.

In other words, transnational market forces and our own economic and social development have outpaced the law—a problem exacerbated by the highly charged nature of immigration reform, which keeps Congress from addressing the issue comprehensively more than once every few decades. This dramatic mismatch between the legal admissions system and our economic and social preferences makes the rule-of-law rhetoric invoked primarily by Republicans opposed to legalization (what part of “illegal” don’t you understand?) beside the point.

Of course unauthorized immigrants have violated the law and are complicit in this dysfunction. But when that law is inconsistent with our own behavior, rendering its enforcement economically and socially counterproductive, the rule of law rhetoric must be put aside, and the system must be reformed. Some may argue that the behavior that has made us reliant on immigrant labor should change, but that is a forward-looking consideration I will address later, not an aspiration that should keep us from dealing pragmatically with the undocumented population already here. The answer to the backward-looking question has to be a fresh slate for everyone involved: the United States should permit immigrants who are here to go through a legal process similar to what they would have faced had our laws been calibrated to reality when they entered, and we should then fix our system to ensure that we need not have this legalization debate again in twenty years. Easy, right?

As in 1986, the implementation issues surrounding legalization will be considerable. If the Grand Bargain passes, a second generation debate will have to happen at the administrative level over how to process the applications of many millions of individuals using a bureaucracy that can’t even handle the passport backlog. Congress, if it is truly interested in reducing illegal immigration, can and should make this process relatively simple by setting administrable rather than punitive terms.

For example, the amendment proposed by Senator Jim Webb, D.-Vir., which would offer legalization only to immigrants who can prove they’ve been in the country for four years and therefore have strong ties to the U.S., would not only give rise to administrative tangles (and potential fraud) by requiring difficult to procure proof in the first place, it would fail to address the illegality problem comprehensively by excluding many millions of immigrants from the program. (The bill as it stands would open legalization to anyone in the United States before January 2007--a very generous standard compared to the 1986 legislation.) What about the so-called “touchback” provisions, requiring immigrants to leave the United States in order to apply for permanent residency when that option becomes available down the road? Does this serve any purpose other than a symbolic one, and will it deter many immigrants from coming forward? What if the requirement is imposed on applications for the “Z” visas—what effect would that have on compliance and therefore on administrability? In my view, the former sort of touchback may be of minimal cost, but the latter could devastate the legalization effort by failing to build the trust among immigrants in the program's early stages, which is necessary to successful compliance.

To be sure, for the Grand Bargain to pass, some provisions that make legalization burdensome on immigrants, whether they serve a good policy purpose or not, will probably have to be included in the final bill, if only to diffuse the toxic amnesty charge. What is more, we must have a process that ensures reliability and security and is perceived as fair, so an administrative burden must be born by those seeking legal status. But as the debate over the details progresses, members of Congress must keep their eyes on the ultimate objective—integrating a population that is with us to stay and restoring rationality to a system that is embedded in a global economy.

Posted 8:05 AM by Anonymous [link]

Comments:

The major unspoken problem with mass legalization which Congress and the President are taking great pains to ignore in their chase for new voters is the estimated $2.6 trillion of additional government spending which will be incurred on behalf of these legalized immigrants throughout their lifetimes. What makes this worse is that these enormous added bills will come due when our own boomers will be retiring and pushing the government to insolvency.

In a nutshell, the vast majority of illegal immigrants have little education and skills. Thus, they will gain far more in government benefits than they will pay in taxes over their lifetimes. During previous waves of immigrants when our ancestors came to this country, there was no substantial welfare state and the immigrants were a net economic gain for the country. However, that is no longer the case.

I would suggest that any CIR must eliminate the free rider problem with businesses gaining profits by hiring cheap immigrant labor, but not paying for the cost of such labor on society. We should adopt Canada's laws where businesses employing immigrant labor must pay for the cost of government benefits provided to that labor. Under such a law, the true costs of immigrant labor will be borne by employers offering these jobs. If the job is still cost effective to offer to an immigrant, then we can set up a visa program to fill them. However, I suspect that many immigrant jobs will dry up and the flow of immigration chasing these jobs will slow significantly.

# posted by

Bart DePalma : 11:01 AM

And, it is likely, our economy would slow signifigantly as well. What is your solution, Mr. DePalma, that will ensure our economy does not take a nose-dive?

# posted by

Charles : 11:07 AM

Charles:

Our economy is already paying substantial indirect costs from immigration. For example, in my state of Colorado, immigrants are fueling an explosion in Medicaid, schools and various other government program costs, which are eating into the money spent on higher education and infrastructure and have sent taxes up over $4 billion over the past couple years. Because employers are able to escape the costs created by the jobs they are offering and the courts have held that states cannot deny illegal immigrants assistance in a variety circumstances, the tax payers are the ones paying the costs.

My preferred outcome would be to allow an unlimited number of immigrants so long as they were employed, did nor commit crimes, learned English and were not eligible for most government services. However, the Courts have rewritten the Constitution to compel government benefits, turning an economic advantage into a loss. The best idea I can come up with under the circumstances is to force employers to bear these costs and pass them onto the consumers who buy the goods and services.

# posted by

Bart DePalma : 12:01 PM

"Namely—maintaining an admissions system totally out of whack with the needs of our labor market (the current preference system admits only 5000 unskilled workers per year, but economists estimate that we need approximately 500,000 such workers to keep industries like construction, food preparation, meat packing, and domestic services functioning)."

I'm amazed that an educated person who otherwise lays out a well-reasoned piece can choose to ignore both classical economic theory and American history.

Let's start with history. Did the construction, food preparation, meat packing and domestic service industries stop functioning from 1920 to 1960, when the immigration of unskilled workers was often just a trickle? No, they did not. Employers simply hired American citizens to do that work and those industries functioned.

And even if you were going to argue that that was an exceptional era, we should still acknowledge that classical economic theory has something to say here. An industry facing a labor shortage will raise wages and find other inducements to attract workers. Some of the work formerly done might be deemed uneconomical in the new paradigm, but that's good because it helps productivity.

There are plenty of good arguments for legalizing undocumented workers, but this thinly disguised "Americans won't do that kind of work" argument is offensive. My immediately family-- including me-- has worked construction and food services and we've been very American right from birth. Business interests have no inherent right to cheap labor.

# posted by

jdw : 1:46 PM

James said...

There are plenty of good arguments for legalizing undocumented workers, but this thinly disguised "Americans won't do that kind of work" argument is offensive. My immediately family-- including me-- has worked construction and food services and we've been very American right from birth.

Amen to that. I worked the same jobs in high school and college to support myself and my family and was proud to do it. Unfortunately, as this post illustrates, more than a few Americans feel that hard physical work is below them. However, there are more than enough of the rest of us to get the work done.

# posted by

Bart DePalma : 2:31 PM

Bart,

My preferred outcome would be to allow an unlimited number of immigrants so long as they were employed, did nor commit crimes, learned English and were not eligible for most government services. However, the Courts have rewritten the Constitution to compel government benefits, turning an economic advantage into a loss.

My guess is that your truly preferred outcome would be that most of these government services did not exist, but that is a different subject for a different time.

My concern here is education. One of the biggest complaints about the current level of immigration is the burden it placed on the schools. Bilingual or ESL programs are a burden detracting from other students. It is a legitimate complaint, but the costs of not educating immigrant children (and even, as Proposition 187 in California suggested, shutting them out of the schools altogether) is a good deal higher. So I guess my question is what role the schools would play in your preferred outcome.

# posted by

Essayist-Laywer : 2:32 PM

Did the construction, food preparation, meat packing and domestic service industries stop functioning from 1920 to 1960, when the immigration of unskilled workers was often just a trickle? No, they did not. Employers simply hired American citizens to do that work and those industries functioned.

In fact, there was a large pool of underutilized American workers in that era. This pool existed for two reasons: increasing productivity led to a decrease in the needs of farm labor; and blacks migrated from the South to the industrial jobs in the North.

Nowadays, of course, that pool of excess agricultural labor is much smaller (though farming areas continue to lose population). The latter factor is, indeed, very similar to what's happening with Mexican workers today -- they're leaving conditions of abject poverty and mistreatment in search of better. Hard to blame the workers for that.

An industry facing a labor shortage will raise wages and find other inducements to attract workers. Some of the work formerly done might be deemed uneconomical in the new paradigm, but that's good because it helps productivity.

You left out an alternative: jobs can be outsourced overseas. That doesn't help Americans much (except those who consume the cheaper products). If, instead, immigrants come in, they at least pay sales taxes and spend much of their earnings here, increasing the velocity of money and permitting the employment of others in the industries which supply their (immigrants') wants.

# posted by

Mark Field : 3:35 PM

"when that law is inconsistent with our own behavior, rendering its enforcement economically and socially counterproductive.

Is this the U.S. Chamber of Commerce or a lawyer for K-Street making this claim? I realize one knows economics better than the other, one knows casuistry better than other, but like "hand-in-glove" they serve the same interests: Plutocrats? Oh, Democrats will get more constituency of co-dependents, so they're not left out of the mix. But duped is still duped. The Wizard's smoke-and-mirrors will not get Dorothy back to Kansas. It'll have been "sold" to Chinese interests.

# posted by

Anonymous : 4:24 PM

Enlightened Layperson said...

Bart: My preferred outcome would be to allow an unlimited number of immigrants so long as they were employed, did nor commit crimes, learned English and were not eligible for most government services. However, the Courts have rewritten the Constitution to compel government benefits, turning an economic advantage into a loss.

My concern here is education. One of the biggest complaints about the current level of immigration is the burden it placed on the schools. Bilingual or ESL programs are a burden detracting from other students. It is a legitimate complaint, but the costs of not educating immigrant children (and even, as Proposition 187 in California suggested, shutting them out of the schools altogether) is a good deal higher. So I guess my question is what role the schools would play in your preferred outcome.

That is why I qualified my comment to "most services." Education is an investment in a future workforce and citizenry rather than a expense without a return. While I would eliminate bilingual education so we can better integrate immigrant children, we do need to educate them if they are to become productive citizens.

My concern is primarily medicaid and various welfare programs. Medicaid is increasing at often double digit rates and is set to bankrupt the states because they do not have the unlimited debt credit card the Federal Government uses to finance entitlement programs. Much of this increase is due to immigrants.

We will have to either substantially raise taxes on American citizens to finance immigrant services or we will have to cut back on the services. or the immigrants.

# posted by

Bart DePalma : 5:14 PM

bart,

"Education is an investment in a future workforce and citizenry rather than a expense without a return. While I would eliminate bilingual education so we can better integrate immigrant children, we do need to educate them if they are to become productive citizens."

I work in an elementary school with many new Mexican students, legal and otherwise. I'm glad to hear your opinion. They learn English at amazing speeds. Students in ESL classes, by the way are in separate classes and therefor pose no problems.

# posted by

Russell : 5:32 PM

Bart's argument in this thread makes a lot of sense to me. If there are indeed hidden costs of immigration, then those costs should be born by those profiting from the immigration.

I'm not ready to blindly accept his factual assertions that those costs exist, but if they do then allocating them to the employers makes the most sense to me. Employers will then pass the costs along to their customers and the free market can determine the value of immigration to our society.

On a sidenote, I would hope that Bart also supports environmental regulation which similarly forces industries to pay the hidden costs of their profit-making activities.

# posted by

QuiteAlarmed : 11:06 AM

# posted by

PMS_CC : 1:12 PM