Balkinization: Immigration reform as a "natural experiment"

Immigration reform as a "natural experiment"

Sandy Levinson

David Brooks has a fine column today on why immigration reform (including, if there is a political "truth-in-advertising" law, "amnesty") is such an easy case. I'm particularly interested in his concluding sentence: "The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation."

Jack has revealed himself to be the cock-eyed optimist that I have long suspected he is (and that makes him such a wonderful person and friend.) . Though I don't know if he loves the Constitution quite so much as his Yale colleague (and our mutual friend and casebook co-editor Akhil Reed Amar), both are basically without genuine anxiety when they ask if the Constitution itself, and not, as Akhil (or Paul Krugman) might put it, simply the fact that one of our two major political parties has been taken over by right-wing crazies, might help to explain why we might in fact be "a pathetic basket case of a nation." For Jack, this is the time that darkest before the dawn of "transition" and, in the word found in the title of one of his two books published last year, "redemption." For obvious reasons, I hope he's right, but I'm more pessimistic. Redemption will not be found before the Messiah comes, and I see no signs of that occurring.

But immigration reform (far more than "gun reform") offers a wonderful test case. Most "leaders" of the Republican Party (I put the term in scare quotes because we have no real idea who the present "leaders" are, as between, say, Rush Limbaugh, Ted Cruz, John Boehner, Mitch McConnell, Chris Cristie, and anyone else one might want to list)--or at least those recognized by Brooks, who in his previous column called for "Coastal Republicans" to enter into a fight to the finish with Southern and Midwest provincials (my terms, not his)--seem to agree that the GOP might be finished as a "grand" party if it doesn't come to terms with the fact that the Simpson-Mazzoli bill of 1986 (passed, of course, while the sainted Ronald Reagan could have vetoed it) fundamentally changed the country forever with regard to its political demography. But, of course, it is totally unclear whether the message has gotten to House Republicans. No doubt, the House can pass any law actually passed by the Senate if Boehner behaves as a true Speaker of the House instead of the leader of the Republican caucus and therefore schedules a vote on a bill that might pass with the support of say, 100% of the Democrats and 20% of the Republicans. The "Hastert Rule" is not, obviously, part of the Constitution. But the ability of one of the two Houses of Congress to inflict a death-ray veto on any law passed by the other house, even if it enjoys the support of the President and most of the public, most certain is part of the Constitution.

Moreover, even after (or during) the immigration imbroglio, there is the question of the Debt Ceiling charade, scheduled for May, and, of course, the fabled sequester, designed basically to crippe the national government and inflict great (and altogether needless) suffering on the most vulnerable among us (as well, of course, as reduce a bloated military budget, as Barney Frank, who ought to be representing Massachusetts in the Senate, would point out).

So it remains unclear how quickly Jack's "transition" will take place and what costs will be inflicted on the country at large, particularly the most vulnerable among us, as the result of our defective Constitution. Perhaps we'll look back, in 2020, when Julian Castro, now the mayor of San Antonio, becomes our first Hispanic President, on the present as the run-up to our new and happy future. May it be Thy ill, O Lord....

Before commenting, you might want to take a look at least at the first panel in last week's gathering, "The State of the Union," with comments by myself, Mickey Edwards, Bill Galston, Thomas Mann, Norman Ornstein, and Alan Wolfe. My own description of our present state is somewhere between "bleak" and "dire," in part because of our Constitution. For better or worse, I'm the distinct outlier n the panel (and in the conference) in focusing on the Constitution as part of the cause of what ails us. Jack, I am sure, is far more representative.

Posted 5:50 PM by Sandy Levinson [link]

Comments:

Sandy:

Brooks correctly identifies the long known economic benefits of immigration, but glosses over or simply denies the costs to the taxpayer of introducing millions of low skill, low wage immigrants into a welfare state and the costs to native low skill workers when that labor pool is dramatically expanded while available low skill jobs are shrinking.

Voter opposition to immigration under these terms is hardly know-nothing nativism and is your primary political problem - not the Constitution, the Hastert Rule or any of your other hobby horses.

The obvious solution (and the one I personally support) would be to return to the immigration rules under which many of our European and Chinese ancestors came to America - so long as you are not a criminal, diseased or mentally disabled, you are in. Once here, you are on your own. The streets are occasionally paved with gold, but they do not lead to a welfare office.

This approach turned a colonial backwater into a world super power.

However, the political class who looks at low skill immigrants as an ongoing source of government-dependent voters is hardly likely to truly liberalize immigration as I suggest. Rather, they prefer ongoing amnesty bills and immigrant welcome packets with Obamacare inserts.

# posted by

Bart DePalma : 7:22 PM

Nothing about Brooks' column is "fine", everything he writes is full of huge holes.

For just one example, there's no "humanitarian case" involved: everything Brooks writes would make things worse (for most people). It would make things more difficult for struggling Americans who'd have to compete against those who previously couldn't compete with them for their jobs (such as federal construction, bank teller, Denny's waitress assuming Denny's checks IDs, etc. etc.)

At the same time, it would harm foreign countries who'd lose even more of their strivers to the U.S. (in one MX state a few years ago, most of their workers were in the U.S.) MX needs all the smart ppl they can hold on to, Brooks would have them come here. That has long term impacts for them and for us.

But, some people would make out: crooked business owners who've knowingly used illegal labor, crooked banks that would profit from deposits and sending money back, crooked pols who take favors from the latter two groups and in exchange turn a blind eye to massive illegal activity, and so on.

Shouldn't law professors avoid siding with and enabling unrepentant crooks?

# posted by

24AheadDotCom : 8:28 PM

its a little weird to attribute the coming sequestration (aka austerity program) to the U.S. Constitution when England Ireland and several other European countries who do not have our const's have imposed far worse austerity on themselves than we soon might. (in fact, the us const. has "caused" higher stimulus than almost all non-us const. countries)

It is one thing to say the us const. is not a very good document which is obviously correct; it is quite another to say this actually matters. To do so convincingly you must not only show that there is a "correct" policy out there but also that the const is thwarting its implementation - thats a hard thing to do but its surely your burden. Good luck, it cant be done cuz its simply not the case.

# posted by

Andrew : 3:42 AM

Here's link to Digital History's "Landmarks in Immigration Hisstory":

http://www.digitalhistory.uh.edu/historyonline/immigration_chron.cfm

I provide this because of our yodeler's comment:

"The obvious solution (and the one I personally support) would be to return to the immigration rules under which many of our European and Chinese ancestors came to America - so long as you are not a criminal, diseased or mentally disabled, you are in. Once here, you are on your own. The streets are occasionally paved with gold, but they do not lead to a welfare office."

Perhaps our yodeler could provide us with dates of those good old immigration days of yesteryear he yearns for. Based on comments by our yodeler on other threads at this Blog, he yearns for those laissez-faire days of the late 18th and the 19th centuries in America's glory days before being ruined by progressives. Also, I wonder if there is a book or books on immigration in America that our yodeler uses as his sources, especially on our "Chinese ancestors" who came to America. Here in MA I am familiar with immigration patterns going back to the Irish and Italians in their initial waves of immigration, followed by other Europeans and Asians. Some of my familiarity goes back to the 1850s in the history of Boston.

So perhaps our yodeler could favor us by identifying with dates the immigration rules of America's past that he favors. Our yodeler's open immigration policy (subject to exceptions - " ... so long as you are not a criminal, diseased or mentally disabled, ... ") might add to the changing demographics that have been doing in the GOP. {Note: Some of our yodeler's exceptions should be compared to the welcome inscription on the Statue of Liberty.]

# posted by

Shag from Brookline : 7:07 AM

Shag:

My Irish, German and Italian ancestors came over between the 1860s and 1903. Their experiences are what I based my comment.

I was discussing immigration and not naturalization, which is why I included the Chinese.

# posted by

Bart DePalma : 10:23 AM

Perhaps our yodeler's Irish, German and Italian ancestor immigrants did well but many were treated poorly in that time frame until achieving political power through naturalization. And the Chinese were treated poorly, including denying them citizenship that was available to our yodeler's Irish, German and Italian ancestors.

Perhaps our yodeler's ancestors passed down journals that he relies upon for his open immigration policy. But there is quite a bit of history on the treatment of various ethnic immigrants that may not square with our yodeler's anecdotal approach. And naturalization is a significant aspect of immigration, thus should not be ignored.

# posted by

Shag from Brookline : 11:14 AM

As I've said before I always appreciate Mr. Levinson's willingness to speak iconoclastically about the Constitution, but I think he is off base here. A lot of Americans (many polls show majorities) simply don't favor amnesty or increased immigration. That elites who are in greater consensus about the issue would like to give those folks what they don't want but are having trouble doing so doesn't indicate our system is broken. If anything, the fact that so many people have for so long been so opposed to increased immigration and so little has been done about it indicates if there is any 'broken-ness' about this issue it is in the other direction...

# posted by

Mr. Whiskas : 7:08 PM

It is surely my own fault that the discussion has turned into a substantive debate immigration. My point is that some kind of genuine "reform" (or, more neutrally, "change") now seems to have the support of both the President and, quite likely, a bi-partisan majority of the Senate, not least because at least some Republicans are coming to the conclusion that the future of the Republican Party as a president-electing party may be at stake.

If the change/reform doesn't happen, it will be, almost certianly, because of the constitutional power of the House to block it. I take it that both Andrew and Mr. Whiskas agree with this analysis--how could they not?--which makes it clear that the institutions established by the Constitution matter and help to explain the actual laws on the books. (Consider in this context George W. Bush's veto of the stem-cell research bill some years ago.) That is why I literally don't understand the dismissive argument that the Constitution just doesn't matter.

Again, to be perfectly clear: I happily concede that lots of people are opposed to "normalization" or "amnesty" of those who are now here illegally. The one and only issue I'm interested in discussing is whether the bicameral system established in 1787 means that such opponents, even if only a minority of the country (or even the electorate), are able to veto changes desired by the majority, who, as it happened, voted for the President and Senate and against the Republican dominance of the House.

Perhaps this ability to veto changes is a good thing. I've certainly supported some in my time. But the debate between Jack and myself (and others) concerns the extent to which "the Constitution matters" and, indeed, helps to prevent the transition he predicts. That's why I still think the future of immigration reform is a good natural experiment.

# posted by

Sandy Levinson : 11:28 PM

I share many of Sandy's concerns with the Constitution, particularly those provisions that seem to thwart a true democracy, including the role of the Senate with power based not on population but the state. Yes, the upper chamber may have been more democratic (despite the slavery provisions) back when there were 13 states. Did the Founders/Ratifiers anticipate the extent of expansion with some new states significantly populated and others sparsely, with each having equal votes in the upper chamber? While the Gerrymander came along early in our Republic, consider how it has been used to thwart the concept of one-person, one vote, demonstrated in the recent House elections with the Republicans maintaining a majority in spite of greater Democrat votes.

There are other undemocratic provisions in the Constitution identified well prior to Sandy's current concerns with the Constitution. The population of America has increased substantially, making representative government perhaps more difficult providing democracy. Would more parties make a difference by sharing power via coalitions? There are no easy solutions. I shudder to think of the potential turmoil of a constitutional convention, with so many disparate views out there, especially at a time when America's leadership role in the world remains critical. I'm reminded of my classmate Joe at Boston English High School who used to quote his Italian grandfather's:

"HALITOSIS IS BETTER THAN NO BREATH AT ALL."

I love Sandy, I love Jack. Whatever their differences, I hope they continue to collaborate from time to time as they have added so much to better understanding our Constitution, which may have been "A Covenant with Death" (per William Lloyd Garrison), but has survived with some breath left.

# posted by

Shag from Brookline : 7:54 AM

"The one and only issue I'm interested in discussing is whether the bicameral system established in 1787 means that such opponents, even if only a minority of the country (or even the electorate)"

False premise. Polls show opponents of amnesty to be a persistent majority of the population and electorate. The only reason it's got any chance is because the democratic system in this country is breaking down, such that on an increasing number of issues public opinion isn't effective at controlling the government anymore.

# posted by

Brett : 8:13 AM

Assuming Brett's:

" ... the democratic system in this country is breaking down, such that on an increasing number of issues public opinion isn't effective at controlling the government anymore."

perhaps Brett might list some of the public opinion that isn't effective.

And Brett might identify the bases of his view on the democratic system breaking down. Perhaps he shares some of Sandy's concerns.eheretr

# posted by

Shag from Brookline : 8:33 AM

Mr. Levinson, I think you are correct in many of your arguments that the Constitution is flawed and I applaud your willingness to run counter to the blind praise for the document and those who wrote it in saying so. And I got that you were not discussing the merits of immigration reform but rather were using it as an example of dysfunctional structures of our government, that is why I only argued that this example was perhaps not a good one since many people do in fact oppose elements of proposed reform. I should note that seven Democratic senators are currently in the Senate voted against reform in 2007, several of them have already indicated they will do so again this time. If only four Republicans have come out for it so far we're looking at perhaps a bare majority in the Senate alone.

To me it is interesting that usually it is the Senate cited as undemocratic in a way that blocks the majority will, but in this instance it is likely going to be the House, the body most like that in a parlimentary system, which is going to where even more difficulties to reform will be faced. To the extent the House is undemocratic I think we can blame gerrymandering more than the Constitution (though perhaps the Constitution should have anticipated this in its rules).

As for the argument between Mr. Balkin and Mr. Levinson I've often seen it as not as big a one as some may think; Mr. Levinson argues the Constitution's flaws hold up many necessary actions and reforms, but Mr. Balkin often talks about how change and action occurs outside the literal text of the Constitution in changing national 'understandings' of the text. I think the two are rather complimentary actually...

# posted by

Mr. Whiskas : 11:15 AM

"perhaps Brett might list some of the public opinion that isn't effective."

Term limits: Adopted essentially everywhere the citizen's initiative was available, pretty much nowhere it wasn't.

Balanced budget amendment. So popular Congress made a show of voting on it, while bringing up multiple versions so that everybody who had to could vote for one of them, without the risk that any particular version would get enough votes to go to the states.

Immigration reform: Public opinion has favored enforcing the borders, and opposed amnesty, for decades, and we never get effective border enforcement, and they keep trying to pass amnesty again.

Essentially what Sandy seems to characterize as America becoming "ungovernable", is that the general population is starting to push back against the political class, preventing it in some cases from having it's way.

# posted by

Brett : 7:19 AM

Brett's reading of polls is as simpletonian as his reading of the Constitution. The devil is in the details of polls, whereas Brett merely cherry-picks right-wing "talking points" as his guide. And we do have the concept of representative form of government (guaranteed to the states specifically in the Constitution and implicitly for the national government). While polling has value, our elected officials are not representative merely by holding a wet finger in the air to determine which way the political winds are blowing. Representative government must be thoughtful, reflective. The ebb and flow of public opinion requires careful analysis. And it must be kept in mind that public opinion of a moment may be misguided, or worse.

The Pew Foundation provides public polls with careful analysis, including changes over time. Brett's P-U version of public cherry-picked polls is pungent.

# posted by

Shag from Brookline : 8:10 AM

We have the concept of representative government, which in order to work requires that the government be representative. When the views of the 'representatives' systematically and persistently differ from those of the general public, this suggests something is broken.

# posted by

Brett : 10:17 AM

Brett, "When the views of the 'representatives' systematically and persistently differ from those of the general public", the general public will vote them out of office. That is why we have elections. The fact that this isn't happening (in your view) would indicate that your views about what the public really wants, and/or what their representatives are doing, are not correct (delusional, actually).

# posted by

Bartbuster : 10:27 AM

Our representative form of government is in place because simple "polls" is not deemed the appropriate way to get a true sense of what the public long term wants & should receive. Polls repeatedly don't give a true sense of the complexity of people on the issues like abortion or whatnot.

It is ironic that Brett cites polls when he rejects certain governmental action when it is deemed to violate certain rights. Thus, polls, e.g., show a rejection of his views on gun regulation, but I don't think he thinks blocking such regulation is perversion of self-government.

Immigration both involves rights and the conflicted nature of the electorate (e.g., those who like the cheap labor undocumented workers bring). Ditto balanced budget amendments. The multiple versions is just one reflection the lack of a clear united front here. Same with term limits really -- they vote for people who say they are for term limits who then change their minds, but the people still vote for them. See, e.g., Tom Coburn.

Anyway, sure, representatives are different from the general public in some ways. That's the point, right? We don't have simple democracy. Brett likes this at times, not liking much government, thus resulting in gridlock. Selectively, he does not.

# posted by

Joe : 12:10 PM