Tag: immigration

Migration Opportunities for Lower-Skilled Workers

Today President Obama is meeting with immigration reform activists, labor unions, and business leaders to discuss immigration reform. The House Judiciary Committee is also having a hearing about opportunities for legal immigration and enforcement of existing laws. Opening the House hearing, Representative Bob Goodlatte (R-VA) said that any immigration reform “must prevent unauthorized immigration into the future.”

So far President Obama and the Senate blueprint for immigration reform have either not mentioned lower-skilled workers outside of agriculture and dairy or propose increasing the rules and regulations that currently make American guest worker visas unworkable. The 2007 immigration reform effort was stopped cold in the Senate when its guest worker provision was gutted because of union pressure—with help from then senator Barack Obama (D-IL) and then senator Jim DeMint (R-SC).

Unions and immigration restrictionists came together in 2007 to stop reform. If they cannot stop it again, they can certainly eviscerate much of the long term gains of a freer international labor market.

In a video released today, I discuss how immigration reform could severely reduce immigration problems going forward, including unauthorized immigration.  My three points in the video are:

  1. Increasing lawful migration opportunities for lower-skilled workers will funnel potential unauthorized immigrants into the legal market.
  2. Welcoming highly-skilled immigrants regardless of where they were educated jumpstarts innovation, entrepreneurship, and allows for firms to expand production in the United States while also increasing employment opportunities for native-born Americans.
  3. Pursuing border and immigration enforcement without a lower-skilled guest worker visa program is a waste of resources. The economic allure to immigrants of coming here is so great that many of them will knowingly and intentionally defy America’s international labor market regulations immigration laws if they are too restrictive. A legal avenue for lower-skilled workers to come to the United States in sufficient numbers to satisfy economic demand and eliminate the supply of unauthorized immigrants is essential.

Legalizing unauthorized immigration will be good for the United States and good for legalized workers. However, without a guest worker visa program going forward this reform will just be an improvement on President Reagan’s 1986 law, but with highly-skilled worker visas.

On ObamaCare’s Discriminatory Subsidies, Brewer Bows When Arizona Should Keep Slugging

Arizona Gov. Jan Brewer (R) recently set aside her vociferous opposition to ObamaCare’s costly Medicaid expansion by announcing she will support implementing that expansion in Arizona. A significant factor in her reversal, she claimed, was that if Arizona did not expand its Medicaid program, then some legal immigrants would receive government subsidies while U.S. citizens would get nothing.

Brewer’s analysis of this “immigration glitch,” and her remedy for it, are faulty. Fortunately, she, Arizona’s legislature, and its attorney general have better options for stopping it.

An odd and unforeseen result of the Supreme Court’s decision upholding ObamaCare is that, in certain circumstances, the law will now subsidize legal immigrants but not citizens. What triggers this inequity is a state’s decision to implement an Exchange – not the decision to opt out of the Medicaid expansion. (Even if a state implements both provisions, legal immigrants would still receive more valuable subsidies than citizens.) The good news is that states can therefore prevent this inequity simply by not establishing an Exchange. If Brewer wants to avoid this “immigration glitch,” there is no need to expand Medicaid. She already blocked it when she refused to establish an Exchange.

The bad news is that the Obama administration is trying to take away the power Congress granted states to block those discriminatory subsidies, and the punitive taxes that accompany them. Contrary to both the statute and congressional intent, the IRS has announced it will impose that witch’s brew in all states, even in the 32 that have refused to establish an Exchange.

Oklahoma attorney general Scott Pruitt has filed suit to stop that stunning power grab. If Brewer is serious about stopping the “immigration glitch,” the way to do it is by filing a lawsuit similar to Oklahoma’s, while adding a complaint that the Obama administration’s illegal subsidies also violate the Equal Protection clause.

The Good and Bad of the Immigration Reform Blueprint

Today, the so-called Gang of Eight senators revealed a blueprint for an immigration reform bill. Details in the actual legislation will matter a great deal but these are initial impressions based on the blueprint. The good and the bad.

Good:

  • Earned legalization for non-criminal unauthorized immigrants. After paying fines, back taxes, undergoing a criminal background check, and other firm penalties, unauthorized immigrants will be able to stay in the United States and eventually earn a green card. This will increase their wages over several years much faster than if they remained unauthorized. 
  • DREAMers will not face the same penalties as unauthorized immigrants who intentionally broke U.S. immigration laws, which is a positive step.
  • Legalization for unauthorized immigrant workers in the agricultural industry will be fast-tracked. This is especially important because the majority of farm workers in most states are unauthorized immigrants.
  • Removing some regulatory barriers and increasing quotas for highly skilled immigrants. This will likely include an increase in the number of employment based green cards and removing the per-country quotas that produce wait times for Indian, Chinese, Mexican, and Filipino workers. Currently, numerous firms and immigrants are dissuaded from even trying to obtain employment based green cards because of the enormous wait times.

Bad:

  • Increases the amount of resources spent on border security. The size of the border patrol is double of what it was in 2004. The number of border patrol agents is seven times greater than what it was in the 1980s with about nine times as many on the southern border. More technology and aerial drones on the border will be wasteful and not produce results.
  • Strong employment verification system like E-Verify. As I wrote here, here, and here, E-Verify is an intrusive big government workplace identification system that does not even root out unauthorized immigrants. In Arizona, which has had mandatory E-Verify since 2008, many unauthorized immigrants have moved deeper into the black market, some industries fire numerous unauthorized workers but don’t hire natives to fill the spots, and the business formation rate dropped because the penalties for intentionally or knowingly hiring unauthorized workers are so draconian.
  • Increases regulations for guest worker visas. Current guest worker visas for agricultural workers are so overregulated that they are barely used. Adding more regulations will only make the visas more unusable and incentivize American farmers and employers to hire unauthorized workers.

A viable guest worker program will increase economic growth in the United States. Guest worker visas are not as good as green cards for lower-skilled workers, but they are the only viable option at this moment. The devil is in the details but this blueprint does not provide for enough future low-skilled immigration.     

Supreme Court: Immigration Reform Needs to Come from Congress

Everyone will find something to quibble with in today’s highly technical ruling in Arizona v. United States, which is not an indication of some baby-splitting grand compromise but rather that this is a really complex area of law.  The Court, in an opinion by Justice Kennedy and joined by four other justices including Chief Justice Roberts, upheld (at least against facial challenge) Section 2(B) of Arizona’s SB 1070, which requires law enforcement officers to inquire into the immigration status of those they’ve lawfully detained if they have reasonable suspicion that the person is in the country illegally.  The Court found, however, that federal law trumped (“preempted”) three other provisions: Section 3, which makes it a state crime to violate federal alien registration laws (because Congress so comprehensively “occupied the field” of alien registration); Section 5(C), which makes it a state crime for an illegal immigrant to “knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” (because it conflicts with the method of enforcement chosen by Congress – regulating employers rather than employees); and Section 6, which allows law enforcement officers to arrest someone they have probable cause to believe has committed a deportable offense (because questions of removability are entrusted to federal discretion).  Justices Scalia and Thomas wrote partial dissents to say they would’ve upheld the entire law.  Justice Alito also wrote separately to say he would’ve only found Section 3 preempted.

My own view most closely aligns with Judge Alito’s—I would uphold three of the four provisions, though for me 5(C) is the problematic one—but more important than the legal weeds are the two policy guides the Supreme Court has given:

  1. The federal government has significant, near-exclusive powers to regulate immigration and even state laws that merely “mirror” federal immigration laws are on shaky legal ground;*
  2. Although federal lawmaking trumps state lawmaking, federal policymaking does not.  Prosecutorial discretion, resource allocation decisions, and other policy processes do not preempt duly enacted state law.

In short, immigration policy by either state action or executive whim won’t cut it. The federal government—Congress and the president, working out that grand compromise—needs to fix our broken immigration system.

* Note that most of SB 1070 has been in effect since July 2010.  The federal government only challenged six of its provisions, and two (regarding transporting/harboring illegal aliens) were upheld by the district court, without further appeal by the government.  In other words, state laws dealing purely with state prerogatives (such as crime or business regulation) are on much firmer legal ground.

Obama Administration Adopts De Facto Dream Act

Two senior Obama administration officials told the Associated Press that the administration will enforce many of the major portions of the Dream Act using the president’s administrative discretion to defer deportation actions.  According to a memo released by the Department of Homeland Security this morning, the plan would apply to unauthorized immigrants who:

  • Came to the United States under the age of 16.
  • Have continuously resided in the United States for a least five years preceding the date of the memorandum and are present in the United States on the date of the memorandum.
  • Are currently in school, have graduated from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
  • Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety.
  • Are not above the age of 30.

If the above plan is implemented fully, between 800,000 and 2.1 million unauthorized immigrants could be legalized for up to two years.  By being legalized they will become more productive, earn higher wages, and more fully assimilate into American society.  But this is only a temporary fix.

Temporary work permits can be issued to unauthorized immigrants who have their deportations deferred but in this situation they would only last 2 years.  It’s a routine administrative procedure that already occurs for unauthorized immigrants who have their deportations deferred.  This is one situation where the complexity of our immigration rules and regulations works to the advantage of immigrants and Americans.

A permanent version of this action in the form of the admittedly imperfect Dream Act would need to be passed to reap the full rewards.

The benefits from passing the Dream Act are enormous.  Evidence from the 1986 amnesty showed that the legalized immigrants experienced a 15.1 percent increase in their earnings by 1992, with roughly 6 to 13 percentage points due to the legalization.

In the Winter 2012 issue of The Cato Journal, Raul Hinojosa-Ojeda estimated that an amnesty similar to 1986 would yield at least an added $1.5 trillion to GDP over a single decade.  If 2.1 million eligible unauthorized immigrants were permanently legalized, that would be at least $250 billion in additional production over the next decade (back of the envelope calculation).

However, before we get too thrilled about the prospects of this sorely needed temporary liberalization, we should remember that hardly anything changed the last time the Obama administration used its prosecutorial discretion to review deportation cases.  His administration promised to wade through backlogged cases and close those where the unauthorized immigrants had strong American family ties and no criminal records.  Since that policy went into effect in November 2011, DHS officials have reviewed more than 411,000 cases and less than 2 percent of them were closed.

If the administration’s proposal temporarily goes as far as the Dream Act would, it will shrink the informal economy, increase economic efficiency, and remove the fear and uncertainty of deportation from potentially millions of otherwise law-abiding people.  It would be a good first step toward reforming immigration and a glimpse at what the Dream Act would do.

Immigration Laws at the Supreme Court: Constitutional but Bad Policy

For anyone suffering from post-Obamacare-argument Supreme Court withdrawal, this Wednesday the Court takes up Arizona’s controversial Senate Bill (“SB”) 1070.  See my blogpost from when the Court granted review for some background.

SB 1070 is much-misunderstood: it has nothing to do with sexy political issues like racial profiling and everything to do with boring legal ones like whether a given state provision is “preempted” by federal law.  That is, do the various parts of the state law – each one of which the Court will be evaluating independently – conflict with federal law (direct preemption) or intrude in an area exclusively reserved to Congress (implied preemption).

United States v. Arizona shows that there’s a difference between what’s constitutional and what’s good policy. SB 1070 was crafted to mirror federal law rather than asserting new state powers that interfere with federal authority over immigration.  That’s why lower courts only enjoined four of its provisions and why the Supreme Court would not be wrong to resurrect even those four.

But beyond this hyper-technical legal analysis, SB 1070 and copy-cat laws elsewhere – some of which go further than Arizona’s and thus are of more dubious constitutionality – highlight the dysfunction in our immigration system.  Given Congress’s failure to act in this area, state governments have spawned a host of federalism experiments.  Many of these laws are terrible policy for reasons ranging from economic effects to the misuse of law enforcement resources.

Legal scholars always enjoy the opportunity to point out laws that they think are constitutional but bad policy.  It makes them feel intellectually honesty (if they have reason to be defensive in that regard).  Well, immigration is the most obvious place where my constitutional and policy views diverge.  The ultimate solution here isn’t for the Supreme Court to strike down the states’ lawful if misguided legislation, but for Congress and the president to enact a comprehensive national reform.

For more on what’s at stake in the case, see my SCOTUSblog essay from last summer, my forthcoming law review article, and my new colleague Alex Nowrasteh’s recent op-ed.  For the briefs and other background materials, see SCOTUSblog’s case page.

‘How an E-Verify Requirement Can Help’

I know little about a House Judiciary Committee hearing tomorrow on E-Verify, but the title of it has a peculiar odor: “Document Fraud in Employment Authorization: How an E-Verify Requirement Can Help.”

You see, the immigration policies Congress has set are the source of the problem. Document fraud is made more likely by employment authorization requirements meant to enforce them, which are also—let’s remember—intrusive and costly business regulation.

In my Cato Policy Analysis “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” I wrote about restrictive immigration policies and the intrusive “internal enforcement” programs they have spawned. In a section titled “Counterattacks and Complications,” I examined how workers and employers will collude to avoid and frustrate worker verification. Mandatory E-Verify will increase identity and document fraud because it makes these frauds profitable. Trying to solve this problem, the government will naturally gravitate toward more powerful identity systems, including biometric identity cards and tracking.

Sure enough, House Judiciary Committee chairman Lamar Smith’s bill, the “Legal Workforce Act,” has a “pilot program” for a biometric national identity card.

When committing fraud is the pathway to productive employment, you know something is out of whack. Among the things out of whack are: too-restrictive immigration policy, internal enforcement, and E-Verify. This is supposed to be a free country where willingness and ability are the keys to employment.