Tag: immigration

What Would Reagan Do on Immigration?

Former Reagan speechwriter Peter Robinson tries to answer that very good question in an op-ed in today’s Wall Street Journal. It’s a question my conservative Republican friends should ask themselves as the party tries, once again, to turn public opposition to illegal immigration into political success at the polls.

Robinson correctly observes that Reagan would have had nothing to do with the anger and inflamed rhetoric that so often marks the immigration debate today. “Ronald Reagan was no kind of nativist,” he concludes, noting that Reagan was always reaching out to voters beyond the traditional Republican base, including the fast-growing Hispanic population.

It’s worth remembering that Reagan signed the 1986 Immigration Reform and Control Act (IRCA), which opened the door to citizenship for nearly 3 million people who had been living in the country illegally. Robinson is confident Reagan would have supported the kind of comprehensive immigration reform championed by President George W. Bush and approved by the Senate in 2006.

For the record, I made similar observations and included a few of the same Reagan quotes in an op-ed I wrote soon after Reagan’s passing in June 2004

My only quibble with Robinson is his assertion that Reagan would have insisted that we successfully enforce the current immigration law first before contemplating any changes. It’s true that the 1986 IRCA contained new enforcement measures and launched an exponential rise in spending on border enforcement. But by all accounts the 1986 law failed to stem the inflow of illegal immigration.

My hunch is that President Reagan would not have simply favored spending more money on an approach that has so clearly failed to deliver. Although he embraced the conservative label, Reagan was always ready to challenge the status quo and change the law to further his vision of a free society and limited government.

I wish more of the Gipper’s admirers today shared his benevolent attitude toward immigration.

Feds Propose Forfeiture as Immigration Employer Sanction

As recent posts in this space indicate, advocates of individual liberty have a variety of views on the proper policy response to illegal immigration. Whatever the disagreements, I suspect there’s some degree of consensus that certain proposed remedies are entirely too Draconian. From the California Labor and Employment Law Blog:

The U.S. Attorneys Office in San Diego has recently criminally prosecuted a French bakery for allegedly engaging in an intentional pattern and practice of hiring unauthorized workers. As part of the indictment, the Government is seeking hefty monetary fines, prison time for the owner and management, and asset forfeiture of the entire business to the Government. While the Government does not have experience running a French bakery, they are getting very serious about enforcing I-9 regulations.

More details on the French Gourmet prosecution can be found at the San Diego Union-Tribune and Restaurant Hospitality.

When government began pushing for asset forfeiture powers, some imagined that the formidable power would remain mostly confined to use in, say, illegal drug or money laundering prosecutions. But that’s not how it has worked. And immigration is hardly the only area in which employers should be worried about the expanding bounds of criminalization. Bills pending in Congress would criminalize “misclassification” of employees – which commonly consists of disagreeing with the government or with labor unions as to whether particular employees should count as independent contractors not covered by overtime and similar federal labor laws. Are we far from the day when prosecutors will start proposing forfeitures against employers over such infractions?

Yes, Rep. Luis Gutierrez Is Pro-National ID

In April, I inquired aloud whether Rep. Luis Gutierrez (D-IL) supported a national ID. It’s clear now that he does—and he’s told us how he wants to use it.

On “Meet the Press” Sunday morning, he said:

I’ve got a driver’s license. It has my photo on it. I have a passport. When I go in and out of the country, the government swipes that passport, and it says, “OK, Luis, you’re ready to come in. You’re authorized.” Why can’t we have a Social Security card with a picture on it, so when you go get a job you swipe it? And if employers don’t use that card, issued by the government to authorize you before you go to work, we send those employers to jail.

Create an internal passport. Send employers to jail. Stop willing Americans from working. Get a handle on all this unfettered freedom.

I discussed why we shouldn’t have a national ID card and federal worker background check system in my Cato Policy Analysis, “Franz Kafka’s Solution to Illegal Immigration.” Congressman Gutierrez’ desire for overall reform is welcome. Some reasons why not to adopt the current national ID card proposal are here, here, here, and here.

Update on the Arizona Immigration Issue

Since I provided my legal analysis of the new Arizona immigration law, I’ve become aware of a few interesting developments in that regard.

First, it seems that I wasn’t working off the latest version of the bill – which I should add is awfully hard to find.  Indeed, perhaps we should excuse Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano for not having read it; both the Arizona Senate’s website for SB 1070, and the Arizona House’s website for the amending legislation, HB 2162, list several different versions under their “Bill Versions” tabs that do not match the bills in the other.  As someone who typically plays in the federal sandbox, if someone can direct me to a verified true copy of the final operative bill, as signed and amended, my colleagues and I – indeed the entire policy community – would be grateful.

In any case, I’m please to announce that the (seemingly) final amended version I’m now working from has improved an already constitutional bill by further safeguarding civil liberties.  Most notably, the ”may I see your papers?” provision was changed to read that law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” only after having made a “lawful stop, detention, or arrest … in the enforcement of any other law or ordinance … where suspicion exists that the [detained] person is an alien and is unlawfully present in the United States” (amended text in bold). This establishes a higher predicate standard for police to initiate contact with any person to whom this law will be applied. In other words, there has to be an independent reason for the stop or detention before the police can ask to see proof of immigration status.

The amended bill also prohibits any consideration of “race, color or national origin” in enforcing the new law in any manner that runs afoul of either the U.S. or Arizona constitutions.  Moreover, the legislature clarified that the determination of an alien’s immigration status would only be performed by Immigration and Customs Enforcement (ICE), the Border Patrol, or a “law enforcement officer who is authorized [to do so] by the federal government.”

All of these changes unquestionably improved the civil rights provisions of the law and should further protect it from successful legal challenge – again without saying anything about the law’s policy wisdom.

Second, while some analysts have argued that Arizona’s law might be preempted by federal law – although the leading case, De Canas v. Bica, 424 U.S. 351, which is 34 years old and predates more recent immigration reforms, is not favorable to that position – Roger Pilon alerted me to a 2005 case (unanimous in the judgment, less so in the reasoning), Muehler v. Mena, 544 U.S. 93, that shows that Arizona’s law doesn’t go as far as the Constitution might allow.  In Mena, the police detained the inhabitants of a house whice they were searching pursuant to a lawful search warrant.  While most of the officers performed the search, others questioned one detainee about her immigration status without any reasonable suspicious that she committed any crime – and certainly without having any reasonable suspicion that she was an illegal alien.  The Supreme Court, in an opinion by Chief Justice Rehnquist, upheld this line of questioning.  Part of the reasoning was that the “may I see your papers?” bit did not prolong the detention in any way – the search was still ongoing – but this is at least some indication that the Constitution allows immigration-related questioning without even the reasonable suspicion required by Arizona.

Third, apparently the head of ICE, John Morton, said his agency will not process illegal immigrants referred to them by Arizona officials.  Morton apparently doesn’t think that laws like Arizona’s “are the solution.”  Well, we at Cato certainly agree that Arizona’s law will not solve a problem that demands a comprehensive federal solution, but that doesn’t mean federal officials can simply decline to perform their duties under the law as it exists.  What Morton proposes is akin to state “nullification” of duly enacted federal law – except worse, because his agency’s job is to enforce that very law.  If Morton feels that strongly about our immigration laws, he should either resign or, while complying with his duties, testify before Congress about the law’s defects and lobby his boss, President Obama, to push reform.

Fourth and finally, President Obama is deploying 1,200 National Guard troops to the border and requesting $500 million more for border security.  With due respect to Arizona Senators John McCain and Jon Kyl, who want even more troops and money, this approach is neither here nor there.  (And it echoes Obama’s split-the-baby decision on Afghanistan, not willing to go for a whole-hog escalation but also not willing to rethink the overall policy.)  Half-measures won’t do it here, Mr. President (and Congress).  If you lack the heart (or have too much of a brain) for a full wall-and-militarization of our southern border – and perhaps mass rounding up and deportation of 12 million people – it’s time for a fundamental reorganization of the immigration system.

U.S. immigration (non-)policy is nonsensical and unworkable.  We’re beyond the point of perestroika; it’s time for regime change.

A Legal Analysis of the New Arizona Immigration Law

I’m a bit late to the immigration party – in part because I’ve been traveling on my Obamacare debate tour and in part because the Kagan Supreme Court nomination and end-of-term Supreme Court decisions have sucked away all my time.  Still, I do have a few things to add beyond Dan Griswold’s excellent points about what real immigration reform would look like and why Arizona’s new law, love it or hate it, at least has the benefit of raising the need for such fundamental reform into the national political discussion.  (Jeffrey Miron also offers some sensible suggestions, and Roger Pilon points out that doing nothing is simply not tenable as a matter of policy or politics.)

First, the Arizona law – which I’ve actually read, unlike the attorney general and the secretary of homeland security – is carefully crafted so as not to go beyond the scope of federal law and so, as Dan alludes in his thoughtful podcast (drawing on discussions with Roger), is probably constitutional.  Here are the key things it does:

  1. Creates the new state crime of “trespassing by illegal aliens,” which essentially consists of being in the state in violation of federal immigration laws as determined by an officer or agency authorized by the federal government to verify immigration status;
  2. Sets out that no official or agency of the state or its political subdivisions (county, city, etc.) ”may adopt a policy that limits the enforcement of federal laws to less than the full extent permitted by federal law;”
  3. State (and local) law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” of any person with whom they have made “lawful contact … where reasonable suspicion exists that the [detained] person is an alien who is unlawfully present in the United States;”
  4. If an alien who is unlawfully in the United States is convicted of violating any state or local law [including the new “trespassing by illegal aliens”], the alien “shall be transferred immediately [on discharge from imprisonment or assessment of fine for the offense] to the custody of the [federal immigration authorities];”
  5. A police officer “may lawfully stop any person who is operating a motor vehicle of the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and [the the pre-existing law against human smuggling];”
  6. Makes it illegal to stop to hire or pick up passengers for work if the vehicle “blocks or impedes the normal  movement of traffic;”
  7. Makes it illegal for an illegal alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor;
  8. Makes it illegal for anyone violating the law (including the new illegal hiring law, as well as pre-existing prohibitions on hiring illegal aliens) to transport, move, conceal, or harbor persons who the alleged violator knows to be illegally in the United States, as well as to encourage or induce aliens to come to Arizona illegally;
  9. Provides an entrapment defense to the pre-existing crime of employing illegal aliens (whether knowingly or intentionally); and
  10. Authorizes the immobilization or impoundment of vehicles used to committ various vehicle-related offenses relating to illegal aliens.

None of these provisions, on their face, appear to be unconstitutional, in the sense of Arizona intruding on federal authority over immigration policy.  Indeed, as reported last week by the Washington Post, this conclusion is backed by a 2002 memo from the Office of Legal Counsel – the Department of Justice unit that acts as the executive branch’s “outside counsel.”  This memo concludes: first, that states have “inherent power” to make arrests for violating federal law and, second, ”federal statutes should be presumed not to preempt this arrest authority.”  OLC memos are not law themselves but they are the DOJ’s official position on various legal issue.  Having said that, an OLC memo can at any time be withdrawn or replaced – as indeed the 2002 memo replaced an earlier 1996 memo on the subject (or, more famously, Jack Goldsmith withdrew the so-called “torture memos”).  And, of course, Congress could pass a law saying states shall not enforce federal immigration laws.

Second, notwithstanding the new law’s facial constitutionality, state or local law enforcement officials could use it to behave in a way that intrudes on federal prerogatives or violates constitutionally protected individual rights.  That circumstance could give rise to an “as-applied” legal challenge.  If police officers stop Hispanic motorists on pretextual grounds just to ask for their papers, for example, that would constitute a Fourth Amendment violation.  Notably, however, the sections relating to state enforcement of federal immigration laws contains a provision specifying: “This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Third, just because the law is constitutional doesn’t necessarily mean it’s good policy (just like not everything that some people say is good policy – like Obamacare, or torture during interrogations – is necessarily constitutional).  There are many arguments against the Arizona law unrelated to civil liberties or racial profiling concerns, including that it misdirects state and local resources away from more pressing priorities (such as violent crime); that it’s driven by misguided fears of crime (when crime has actually been dropping in Arizona, and nationally the foreign-born commit crimes at lesser rates than the native-born); and that an “enforcement-first” mentality gets things backwards in that we should first reform and expand the ways people can come here legally and then take action against those who still come illegally.  Similarly, there are many arguments in favor of the Arizona law not based in racism, or political opportunism, or misapplied economics. 

Fourth, the boycotts of Arizona adopted by city councils around the country – at last count, Berkeley, Boston, El Paso, Los Angeles, Oakland, San Francisco, St. Paul, and West Hollywood have all passed resolutions restricting official travel, investment, and/or contracts with the Grand Canyon State – are likely themselves unconstitutional.  That is, unlike private individuals, organizations, and businesses, states (and their political subdivisions) cannot erect barriers to trade against other states.   Preventing such interstate discrimination was, of course, one of the original purposes of the Constitution and, specifically, its Commerce Clause (which grants Congress the power to regulate interstate commerce).  We often discuss the Commerce Clause in terms of Congress incorrectly invoking it to justify legislation not having anything to do with either commerce or interstate activities – such as, again, the individual health care mandate – but just the same it protects economic liberty by forestalling trade wars.  (Technically, the issue here is the “dormant” Commerce Clause in that cities are intruding on the boycott-less regime Congress has established by not passing boycott laws.)  Lo and behold, Gary Pierce of the Arizona Corporation Commission sent a letter to L.A. Mayor Antonio Villaraigosa threatening to cut-off the 25 percent of its electricity that the City of Angels gets from its eastern neighbor.  “I am confident that Arizona’s utilities would be happy to take those electrons off your hands,” the commissioner says.  Stopping this sort of tit-for-tat silliness – along with being able to better muster national armies – is why we got rid of the Articles of Confederation.

In short, the Arizona immigration law presents a tremendously complex issue, as the Arizona Republic has recognized, that does not lend itself to easy calls or soundbites.  I myself am not certain how I would have voted if I didn’t have the third option (as Arizona doesn’t) of imminent federal reform – to the disconsolation of state legislators around the country who have asked me what they can do to placate a (legitimately) aggrieved public besides enactiong Arizona-style laws.

President Obama and Congress, pass comprehensive immigration reform now!

Immigration II: On the Substance of the Matter

Responding to my immigration post this morning, my colleagues Dan Griswold and Jason Kuznicki have focused on the single short paragraph that touched on the substance of the matter. (The question before me, posed by Politico Arena, concerned mainly the political implications of the new Arizona law, given the latest Pew Research Center poll on the issue.) I quite agree with both that we’ve never had full control of our southern border (or any border, for that matter), but as Dan has noted elsewhere, when we had a guest-worker program in place, illegal immigration dropped by 95 percent – no small drop. And illegal, not legal, immigration is the issue before us. And Dan is right too that we’ve thrown a lot of enforcement at the problem in recent years, to limited avail, so it’s not true that Congress hasn’t done anything. What it has done, however, hasn’t addressed the real problem, the underlying substantive law, as Dan has often written.

I’m struck, though, by Jason’s unqualified comment that he can’t say he shares my views on immigration.” Really? I did say, I believe, that Congress needs to address the problem, including with a guest-worker program. And I also said that “It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders.” I can’t imagine anyone disagreeing with that.

Concerning both the welfare state and terrorism, Jason points to “remedies” at the far end of the problem. He writes, for example, that our welfare state is going broke anyway, and “compared to the damage being done by native-born U.S. citizens and their cursedly long lifespans, the immigrants’ overall effects are quite small.” (I won’t take that “cursedly long lifespan” point personally.) True, but in places where the welfare state issues are concentrated, like border-state emergency rooms and schools, that long-term national perspective isn’t the issue. Yes, getting the government out of health care and education might ameliorate those localized problems (that question’s for another day), but we can’t always wait for more remote problems to be solved before we address more immediate ones.

And that goes for Jason’s terrorism point, too. He writes: “Without the black market in drugs, we’d have a lot less to fear from terrorists, particularly on our southern border.” I’m all for legalizing recreational drugs. But I was alluding to Islamic terrorists, not narco-terrorists, when I spoke of getting control of our borders. Legalizing drugs (again, a more remote remedy) might have some effect on the coffers of Islamic terrorists, but it would hardly solve the terrorism problem. As long as that problem exists, we need border control. Let’s remember, for example, that it was an alert border agent who thwarted the would-be LAX bomber.

Let’s Get Serious about Immigration Reform

The controversy over America’s immigration policy does not allow for easy answers, as the post below by Roger Pilon demonstrates. Even among those of us who advocate limited government and free markets, there is room for debate about what our immigration policy should be and the order in which needed reforms should be pursued.

Roger gives a welcome nod to the argument for “a serious guest-worker program,” which I’ve argued is essential to any successful reform effort. He also acknowledges that its implementation should be in concert with serious enforcement rather than delayed indefinitely by demands that we “control the border first.”

One place where I differ with my dear colleague is in his assertion that: “We no longer control our southern border, and Congress seems unable or unwilling to do anything about it.”

I’m not sure there ever was a time, at least in recent decades, that the U.S. government exerted “control” over the southern border in the sense that illegal entry was largely prevented. Sealing a 2,000-mile border remains a daunting challenge to those who advocate it.

If anything, our border with Mexico is more under control today than at any time in recent years. According to estimates by the Pew Hispanic Center and the Department of Homeland Security, the number of people living in the United States illegally has dropped by more than 1 million in the past two years. That strongly implies that the net inflow of illegal immigrants across the border has declined sharply.

The main reason for the drop in net illegal immigration is probably the recession, but increased enforcement has arguably played a role as well. According to a recent paper by Dr. Raul Hinojosa-Ojeda of UCLA, the federal government has dramatically increased the resources it spends to “control the border.”

Consider: The U.S. Border Patrol’s annual budget has shot up by 714 percent since 1992, from $326 million to $2.7 billion. During the same period, the number of Border Patrol agents stationed along the southwest border has grown from 3,555 to 17,415. Hundreds of miles of fencing has been constructed along the border, much of it across private property.

If this is the mark of a government “unwilling to do anything,” I would shudder at the cost and intrusion of a more concerted effort.

The bottom line is that our “enforcement only” approach to controlling the border has failed, and it will continue to fail until we create a legal alternative to illegal immigration.