Dimaya v. Sessions is a milestone simply because the Court struck down a provision of immigration law, but it has wider implications.
John Baker, Jr. argues that attempts to restructure immigration policy must focus on the economic incentives of both businesses and foreign workers if the rule of law is to be upheld.
Speaking on immigration to law school audiences and defending the nation’s right – indeed, obligation – to distinguish between citizens and non-citizens is quite a challenge. It helps when I begin by mentioning my representation of some “unauthorized aliens” (the term used in immigration law), my recruiting of foreign students, and my promotion to foreign investors of the EB-5 program for a “green card” and eventual citizenship in return for large investments that generate new jobs for American workers. At that point, it seems those who have come determined to confront me are now willing at least to listen. Apparently, they conclude that “Maybe, he doesn’t actually hate foreigners.”
Immigration is the one social issue which actually falls within the authority of the federal government due to a sovereign’s international right to control its borders. It is also the one social issue over which the deadlock in Washington currently appears to be unbreakable. Compare the abortion issue on which, despite deep divisiveness, the Congress passed, the president signed, and the Supreme Court upheld the Partial-Birth Abortion bill. Emotions on both sides of this most controversial issue were as strong as—if not stronger than—usual, but the rational argument for the legislation tipped the balance. With immigration, the debate in Washington lacks rational argument because it is dominated by the extremes of those for open borders versus those who say they oppose illegal immigration but who actually also oppose legal immigration.
Congress last enacted broad immigration legislation in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act. This was supposed to be a “get tough” law that would deter illegal migration to the United States. Instead, illegal immigration has only escalated since then, to at least 11 million according to the Census Bureau. Alarmed by the uncontrolled increase in illegal immigration, much of the public wants even tougher measures. What almost nobody mentions is that certain “get tough” provisions in the 1996 law had the opposite effect of what was intended. They actually encouraged increased illegal immigration. Rather than going back and forth across the border, as they previously did with ease, illegal workers chose to move their entire families to the US rather than incur the repeated costs of paying coyotes to get them across a tightened border.
Reversing the flow of illegal migration requires a change in the incentive structure. Those most vocal in their opposition to illegal immigration, emphasizing adherence to the law, often urge illegal immigrants to go home and get at the back of the line for legal immigration. In reality, however, that is not possible thanks to that “get tough” legislation enacted in 1996. [See 8 U. S. C. 1182]. This legislation provides that those illegally in the country, whether they came in illegally, innocently overstayed a visa, or misfiled a form are barred either for a period of years or life from coming back into the U.S. Even if unauthorized aliens are willing to do so, they cannot get at the back of the immigration line after going home. Having already broken the law and lacking the possibility of legal immigration, what has an unauthorized alien got to lose by failing voluntarily to leave the U.S.? The worst that can happen is deportation, and that is highly unlikely.
An effective immigration policy is one in which lawyers advising unauthorized aliens convince their clients that it is in their best interest to leave the country and then return legally. That would have happened prior to the 1996 legislation. Today, however, immigration lawyers have a very difficult balancing act to perform. On the one hand, they are obligated to counsel and represent their clients in terms of their best interests. On the other hand, they may not advise them to violate the law. Once, however, the lawyer explains the different aspects of immigration law as applicable to a client’s case, including the bars to legal re-entry, the client will rationally conclude that it is in his or her best interests to continue violating the law.
And if the unauthorized alien is caught, what happens? Likely true to life is the scene from the open-borders advocacy film “A Better Life,” in which a pro-bono lawyer counsels an unauthorized alien arrested and placed into the deportation process. The unauthorized alien, the film’s “hero,” plans to contest his deportation rather than leave his teenage son in the US. The lawyer tells him that doing so will take months and has only a 3% chance of success. He then counsels (in words as best as I can recall): “Although it is cheaper and faster to leave the country and pay a coyote to bring you back across the border, I must advise you that there are consequences.” He doesn’t specify the “consequences.” Our hero gets the message, reverses his decision to fight the deportation order, and boards the government’s bus taking him back to Mexico. The practical “consequences,” shown as the film ends, are that a coyote leads our hero, along with others, back towards the U.S. border and that he undoubtedly re-joins his son in the U.S.
Many opponents of illegal immigration say “First, secure the border” and then we can talk about expanding legal immigration. Even if it is possible to secure the border completely, however, that does not reduce the existing population of unauthorized aliens in the U.S. Instead, if the border has been secured, the argument would turn to some form of amnesty for those already in the U.S. That, as demonstrated by the 1986 amnesty, would only encourage more illegal immigration. Moreover, regardless of a secure border, the number of unauthorized aliens would continue to increase because a high percentage of them come into the US legally on a visa and become “unauthorized” when they fail to leave when their visa expires.
In order to reduce the existing population of unauthorized aliens, to discourage future flows of unauthorized aliens, and to induce voluntary obedience to the nation’s immigration law, it is necessary to reform the incentive structure. That requires at least three policy changes: 1. repeal of the 1996 bars to legal immigration for those who have previously entered illegally; 2. even-handed enforcement of immigration laws against U.S. employers; and 3. expanded legal immigration. The first, while indispensable, will by itself have limited effect. The second alone, which is currently occurring under a program “Enforcement through Attrition,” will prompt migration – not out of the country, but to other American locales. Without the third, which is resisted by many who falsely claim only to oppose illegal immigration, vigorous enforcement of the immigration laws against businesses can have such negative economic consequences that it softens support for enforcing immigration laws. In other words, all three policy changes must come together.
Without the first and the third policy changes, the second policy is bound to fail. After receiving much criticism on immigration enforcement, the Bush Administration engaged in selective enforcement of the immigration laws against certain businesses. The Obama Administration has also pursued, at least in part, selective enforcement. Dubbed “Enforcement through Attrition,” the name of the initiative suggests that illegal workers who lose their jobs in the crackdown somehow drop out of the labor force. Selective enforcement, however, only produces the “burglar alarm” effect. That is to say, when one house in a neighborhood installs a burglar alarm, it may prevent a burglary of that home; but burglaries do not decrease. The burglar simply goes to the next house. Similarly, isolated crackdowns on businesses have driven illegal workers out of a particular area – not out of the country. This policy-initiative may be supported by some policy-makers because they believe it will fail. They can then argue that their “get tough” enforcement efforts failed to reduce illegal immigration.
Reducing the illegal immigrant population by enforcing immigration laws against businesses is not impossible; but it must take account of what motivates businesses and then must ensure that the laws are applied even-handedly, nationwide. Like the illegal immigrants they hire, businesses are rational economic actors. There is good reason to believe that most simply want to hire bodies to do the work that needs to be done. They seek workers and illegal immigrants seek work. Businesses have no obvious reason to prefer illegal over legal workers, except a minority who hire illegal over legal workers in order to pay lower wages. Certain areas such as farming have great difficulty recruiting American workers. In sectors of the economy where Americans are reluctant to work, employers certainly have been willing to turn a blind eye to whether a worker is or is not legal. They will continue to do so as long as the benefit of having the needed workers outweighs the perceived risks of enforcement.
To change matters, businesses in every sector, in every part of the country, have to believe that there is real risk at least of being fined for careless hiring of illegal workers. The cost of the fine has to outweigh the benefit of careless hiring. Such enforcement need not involve the heavy hand of criminal penalties against businesses. Criminal enforcement efforts are designed to make highly publicized examples of an unlucky few and thereby strike fear in others. Such efforts have done little, if anything, to reduce the population of unauthorized aliens, who have simply moved elsewhere.
Studies demonstrate that crime reduction results not from heavy penalties, but from the certainty of some punishment. As discussed above, selective crack-downs – heavy or not — will not reduce the illegal immigrant population. If you accept that enforcement must be nationwide, but wrongly believe that enforcement must be heavy, you conclude that a nationwide heavy crackdown is simply impossible. The expense of heavy crackdowns nationwide would be terribly high both in terms of government resources and the real possibility of damaging the economy. As a result, many policy-makers seem to have concluded—either because they want to or because they are not very resourceful—that as a practical matter nothing can be done about stopping illegal immigration.
A lighter use of force is not only more effective, but it is also more consistent with the Rule of Law. An essential element of sovereignty is the ability to employ force when necessary to give effect to the laws. But as a matter of principle and practicality, a free government cannot enforce the law by relying entirely – or even largely – on force. If most citizens were willing to commit crimes whenever they believed they would not be caught, we would not have sufficient police forces – absent martial law – to enforce the criminal laws. The Rule of Law assumes that most people will feel morally obliged to obey the law. Wherever possible, wise governance operates on the assumption most people will obey the law without the use of force. The threat of force can be effective only if actually used against a minority who refuse to obey voluntarily.
If businesses cease, or at least greatly reduce, employment of unauthorized aliens, the jobless foreigners will leave – unless some states provide various social welfare benefits that leave unauthorized aliens better off, even without a job, in the US. Without the availability of unauthorized workers, at least in certain sectors of the economy, American businesses will suffer. So simultaneously with the reduction of unauthorized aliens, Congress needs to increase the number of foreign workers allowed to work legally in the U.S.
A major barrier to expanding legal immigration and guest worker programs is the argument that such a policy takes jobs away from, or lowers the wages of, American workers. This is not a new argument. It is one that has been used since the 19th century and, as used against Chinese immigrants, led to the Chinese Exclusion Act. Nevertheless, it is possible for an intelligent immigration policy, including a guest worker program, to allow into the U.S. those who fit the demonstrated needs of American businesses and farms. New workers are also new consumers. Without an expanding population, along with tax and regulatory reforms, the American economy will lack the dynamism necessary to create the higher paying jobs Americans have come to expect.
Since the large-scale immigration of the Irish in the 1840s, when the U.S. had virtually no limits on entering the country, immigration has been an extremely controversial issue. The emotions generated have always made it terribly difficult to reach a reasonable compromise at the national level. Currently, very few federal officials are willing to do anything constructive; instead, members of Congress and President Obama pander to one extreme or the other. The fact that President Bush did not pander, but failed in his effort to reform immigration may have led many members of Congress to conclude that nothing can be gained by leading on this issue. As a result, states such as Arizona and Alabama are taking matters into their own hands through state laws and enforcement policies.
President Bush’s attempt at reform was defeated because it was viewed as an amnesty. Breaking the deadlock on immigration requires policies that reject amnesty and do what a majority of Americans want, namely that unauthorized aliens go home and get in line. To achieve that end requires making it possible to get in line after going home and increasing legal immigration and guest worker opportunities so that line actually moves. Such policies would create incentives for most of the unauthorized aliens to exit the country voluntarily.