Tag: immigration

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.

Congress Pushes Biometrics

The Federal Trade Commission has no jurisdiction over government entities so when it looks with concern at the use of facial recognition technology, it’s looking at the private sector.

Facial recognition is only one of many biometric technologies, of course, and Congress is pushing hard for biometrics that can help track and control us for various purposes. If anyone should be looking with concern, it should be us looking at the federal government.

There are legitimate uses for biometrics, of course, and well-designed implementations will undoubtedly benefit us all. But biometrics programs implemented for the government will tend to prioritize hoovering up federal cash over striking delicate balances among cost, effectiveness, privacy, and civil liberties.

So let’s look at how Congress is pressing—and in one case insufficiently restraining—the rapid advance of biometrics.

H.R. 658, the FAA Reauthorization and Reform Act of 2011, has passed the House and awaits action in the Senate. It says that “improved pilot licenses” must be capable “of accommodating a digital photograph, a biometric identifier, and any other unique identifier that the Administrator considers necessary.”

H.R. 1690, the MODERN Security Credentials Act, establishes that air carriers, airport operators, and governments may not employ or contract for the services of a person who has been denied a TWIC card. “TWIC” stands for “Transportation Worker Identity Card,” the vain post-9/11 effort to secure transportation facilities from bad people. TWIC cards use biometrics.

The Army deploys biometrics. Public Law 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (cost per U.S. family: $13,500+) allowed spending on Army field operating agencies “established to improve the effectiveness and efficiencies of biometric activities and to integrate common biometric technologies throughout the Department of Defense.”

There are lots of biometrics plans in the immigration area. H.R. 1842 is an immigration bill called the Development, Relief, and Education for Alien Minors Act of 2011. (Senate version: S. 952) It would allow an otherwise qualified immigrant to get conditional permanent resident status only after submitting biometric and biographic data for use in security and law enforcement background checks. (Alternative procedures would be available for applicants unable to provide such data because of a physical impairment.)

S. 1258 does roughly the same thing with regard to any lawful immigration status. This bill is called the Comprehensive Immigration Reform Act of 2011, one of many attempts at comprehensive reform. In addition to requiring immigrants to submit biometrics, it also requires the government to issue “documentary evidence of lawful prospective immigrant status” that includes a digitized photograph and at least one other biometric identifier. The bill would also reinforce the use of biometrics in employer background checks and at the border.

H.R. 2463, the Border Security Technology Innovation Act of 2011, calls for continued study of mobile biometric technologies at the border. The Under Secretary for Science and Technology of the Department of Homeland Security would coordinate this research with other biometric identification programs within DHS.

H.R. 2895, the Legal Agricultural Workforce Act, would create a nonimmigrant agricultural worker program. In the program each nonimmigrant agricultural worker would get an identification card that contains biometric identifiers, including fingerprints and a digital photograph.

S. 1384, The HARVEST Act of 2011, is similar. In providing for the temporary employment of foreign agricultural workers, it calls for “a single machine-readable, tamper-resistant, and counterfeit-resistant document” that verifies the identity of the alien through the use of at least one biometric identifier.

There’s more than just immigration. Pursuing waste, fraud, and abuse, H.R. 3735, the Medicare Fraud Enforcement and Prevention Act of 2011, would establish a biometric technology pilot program. The five-year pilot program would use biometric technology seeking to ensure that Medicare beneficiaries “are physically present” when receiving items and services reimbursable under Medicare. How many biometric scanners would have to be out there for that to work?

S. 744, the Passport Identity Verification Act, calls on the Secretary of State to conduct a study into whether people applying for or renewing passports should provide biometric information, including photographs that facilitate the use of facial recognition technology. I bet the answer they get back is “Yes!” That’s how you build programs in the federal government: do a study, then a pilot program, and then—bingo—you’ve got a full-fledged, permanent drain on the public fisc.

Speaking of money, S. 1604, the Emergency Port of Entry Personnel and Infrastructure Funding Act of 2011, establishes a grant program in which the Department of Homeland Security would give cash out to state and local law enforcement for the purchase of various technologies including “biometric devices.”

I mentioned that there is a bill that would restrain biometrics insufficiently. H.R. 654 is the Do Not Track Me Online Act. It would direct the Federal Trade Commission to prescribe regulations regarding the collection and use of information obtained by tracking the Internet activity of an individual. The bill would treat unique biometric data, including fingerprints and retina scans, as “sensitive information” while allowing the FTC to modify its definitions.

And the FTC would have to modify the definitions because one’s face is unique biometric data, meaning that anyone who stores photographs online would be subject to regulation under the bill—oh, except the government.

The bill specifically excludes “the Federal Government or any instrumentality of the Federal Government, nor the government of any State or political subdivision of a State.” Too bad biometric sensors don’t pick up hypocrisy.

So there you have it. The Congress is quite engaged in pushing biometrics, including facial recognition. The one bill I found to restrain their use doesn’t apply to the federal government or the states. I’ll be keeping an eye on all this, while the government uses lasers and infra-red scanners to watch all of us….

Supreme Court Takes Up Arizona Immigration Law

The Supreme Court has agreed to review Arizona v. United States, the case regarding SB 1070, the Arizona law (only) four sections of which have been enjoined by the lower courts: requiring police to check the immigration status of anyone they have lawfully detained whom they have reasonable suspicion to believe may be in the country illegally; making it a state crime to violate federal alien registration laws; making it a state crime for illegal aliens to apply for work, solicit work in a public place, or work as an independent contractor; and permitting warrantless arrests where the police have probable cause to believe that a suspect has committed a crime that makes him subject to deportation.  For my previous analysis of SB 1070 and the legal challenges to it, see here, here, here, and here.

By taking up this case, the Supreme Court is wisely nipping in the bud the proliferation of state laws aimed at addressing our broken immigration system.  One way or another, states will know how far they can go in addressing issues relating to illegal immigrants, whether the concern is crime, employment opportunities (providing or restricting them), registration requirements, or even so-called sanctuary cities.

Of course, states wouldn’t be getting into this mess if the federal government – elected officials of both parties – hadn’t abdicated its responsibility to fix a system that serves nobody’s interests: not big business or small business, not the rich or the poor, not the most or least educated, not the economy or national security, and certainly not the average taxpayer.  For their part, SB 1070 and related laws in Alabama, Georgia, and elsewhere are (with small exception) constitutional – the state laws are merely mirroring federal law, not conflicting with it or otherwise intruding on federal authority over immigration – but bad public policy.  (For more on both these conclusions, read my SCOTUSblog essay from last summer.)

What this country needs is a comprehensive reform that obviates the sort of ineffectual half-measures the states are left with given Congress’s shameless refusal to act.  It’s not very often that Cato calls for the federal government to do something, but the immigration system is quite possibly the most screwed-up part of the federal government – which of itself is a significant statement coming from someone at Cato – and one that is so incredibly counterproductive to American liberty and prosperity.

The Court will hear Arizona v. United States in the spring.  For more immigration-reform developments, see this note in today’s Wall Street Journal and my blogpost on Utah’s plan, which the federal government has also since sued to enjoin.

Border Security, the War on Drugs, and the 2012 GOP Presidential Race

The issue of border security has made its way into the 2012 GOP presidential race and candidates are jockeying to separate themselves from the pack. The topic garnered some attention at the Republican national security debate on November 22. An Associated Press story today examines the candidate’s platforms on the topic and as the title implies, rightly concludes securing the border is impossible. I am quoted in the article and make exactly that point:

Mitt Romney and Newt Gingrich have promised to complete a nearly 1,950-mile fence. Michele Bachmann wants a double fence. Ron Paul pledges to secure the nation’s southern border by any means necessary, and Rick Perry says he can secure it without a fence — and do so within a year of taking office as president.

But a border that is sealed off to all illegal immigrants and drugs flowing north is a promise none of them could keep.

“Securing the border is a wonderful slogan, but that’s pretty much all it is,” said Ted Galen Carpenter, a senior fellow at the libertarian Cato Institute. “Even to come close would require measures that would make legal commerce with Mexico impossible. That’s an enormous price for what would still be a very leaky system.”

The bottom line is the border is simply too big to control. Attempting to fully police the border must pass a simple cost-benefit analysis, and it is not clear that our current policy passes that test. And yet, the candidates all agree securing the border is necessary to combat terrorism, illegal immigration, and drug violence stemming from Mexico.

The candidates have little reason to reexamine that assumption. Not only is it politically advantageous to call for securing the border, but it is a convenient one-size-fits-all solution to those three broader policy issues. They have calculated that this is what voters want to hear.

But it is an illusory solution. Laws protecting the border must exist and be enforced, but it is not clear that this alone, even if done more effectively or efficiently, will prevent terrorists or illegal immigrants from entering the United States. And the “securing the border” panacea certainly will not end the flow of drugs into the United States.

Curiously, while the GOP candidates all express worries about terrorism and illegal immigration, the subject of the war on drugs has hardly been discussed.  Although drug violence in Mexico is the only major security problem the Untied States faces on any of its borders, the issue has not produced serious consideration thus far.  Rep. Ron Paul (R-TX) has been the only candidate to offer a thoughtful, consistent approach the issue, calling for an end to the failed policy.

The candidates should be pressured to answer why Washington continues to spend billions of dollars to wage the war on drugs each year with little to show for it. The power of the drug cartels has reached the point that the Mexican government no longer controls some areas of the country. And there are worrying signs that the violence is beginning to bleed across the border into the United States.

Our prohibitionist efforts have failed and a new policy is needed. Only by removing the lucrative black-market drug trade and thus effectively defunding the Mexican drug cartels can we begin to end the violence and illegal activity that plagues Mexico and the southern U.S. border region.

That is the substantive discussion that should be taking place in the GOP debates, rather than the posturing and repeated faux policy prescriptions to secure the border.

To Spur Technology Innovation, Stop Pulling on the Rope

I spent the morning at The Atlantic’s Washington Ideas Forum. Before the big names were to do their spiels during the afternoon today and tomorrow morning, there were a series of breakout sessions, among which was one on “Technology Innovation.”

Our suggested “points to ponder” were:

  1. Can our nation regain our competitive edge through innovation?
  2. Will our knowledge and information-based workforce continue to offer cutting-edge technologies to improve the way we live and work?
  3. What measures can we implement to foster creativity and encourage companies to grow intelligently? and
  4. Will the paradigm of how people work, think and communicate be meaningfully transformed as a result of technology? Or is this another short-term trend, with no long term changes?

At least one of the other participants thought the summary of the discussion I gave in the latter half was pretty good, so I’ll share my takeaway here roughly as I did there—maybe sounding just a little more “Cato-y” here.

First, note the conspicuous use of collective pronouns in the first three discussion points. They obscure the goals and actors quite nicely, summarizing to: There is an undefined group out there that we want to have do an undefined set of things amounting to innovation.

I was reminded of the metaphor for spurring economic progress (if I recall, and I don’t recall where I first heard it): Spurring economic progress is like pushing a rope. You really can’t do it. Someone has to pull it, and the job of policymakers is simply to not pull on the wrong end.

In our brainstormy session, the ideas generally focused on pushing our end of the rope. “We” need more basic research and R&D. “We” need more and better education in science and technology. “We” need more inspired leadership, the spur of a new Sputnik.

These things are all probably inputs to innovation in some sense. None of them, I don’t think, will produce innovation as a matter of course. And nobody knows where to direct these efforts so that they do produce innovation.

A few other ideas emerged, ways that public policy can stop pulling on the rope. One was letting immigrants stay in this country—particularly the ones who have just earned advanced degrees—and welcoming them to stay. Another one was reducing the role of patent strategy in tech-business decision-making. Patents seem no longer to be primarily a spur to innovation, but a strategic arsenal used offensively or defensively by tech giants. A third idea that nearly surfaced was tax cuts, but its author in the conversation pivoted from what other countries are doing with tax policy to “national competitiveness,” never actually saying that U.S. tax cuts would spur business activity and innovation.

Arriving back at the office, I chanced to come across some thinking that would have contributed mightily to the discussion: NYU professor of economics Bill Easterly talking about the relationship of individual rights to economic growth, development, and innovation:

[I]ndividual rights is also a way to mobilize all the knowledge in society that we need to make the economy work. It’s the individual that has the particular knowledge so that they know how to run their factory, to employ people, to be a worker themselves, to start new businesses.

We’ll talk later about examples—like the guy in Rwanda, who stumbled upon a very unexpected success. He figured out—this is not something anybody would have predicted—that Rwanda could prosper by exporting gourmet coffee, which you can find in New York’s best coffee shops.

One reason that worked so well for Rwanda, is they have a tremendous infrastructure problem. It’s very hard to get heavy stuff shipped abroad because they are landlocked, they’re surrounded by countries with lousy roads, lousy ports. But gourmet coffee is something that you can create with lots of labor, which Rwanda does have a lot of, and it has very high value-to-weight ratio. So you just put it on the airplane, and ship it to New York.

So, there was no expert economist that flew in and told Paul Kagame, the autocrat of Rwanda, “Here’s the plan: Identify gourmet coffee as the growth industry worldwide. That’s the recipe.” None of that happened.

These successes are always a surprise. That’s why the expert top-down plan doesn’t work. You need the entrepreneur, you need the consumer, you need the market feedback, you need the democratic feedback, and all of this is built on this large edifice at the bottom of individual rights.

Defend people’s rights to own and use their property, however they might imagine to do that, then watch them deliver their surprises. That’s innovation policy. Stop pulling on the rope.