September/October 2010

Policy Forum: The Politics and Law of Immigration

DAN GRISWOLD: Arizona’s recent immigration law won’t lower the crime rate. It won’t build any new houses, boost the economy, or even create a single job — except perhaps for lawyers and police officers. In fact, the new law will probably do just the opposite. It may lead to higher crime and unemployment and make the housing slump even worse than it would be without the law.

One of the clinching arguments behind passage of SB 1070 was fear that illegal immigration has fueled a crime wave in Arizona. Yet all the data point in the opposite direction. Violent crime in Phoenix last year plunged 17 percent from the year before, three times greater than the nationwide decline. During the first three months of 2010, homicides in Phoenix were down 38 percent, and robbery was down 27 percent.

Arizona’s other major cities reported similar drops. The crime rate in Arizona is the lowest it has been in 40 years.

The new law will do nothing to stimulate Arizona’s economy, either. Low-skilled immigrants, legal and illegal, provided the necessary manpower that fueled Arizona’s growth before the recent recession. And there’s no connection between unemployment and immigration. In the 1990s, as illegal immigration more than tripled, the unemployment rate in Arizona dropped from 5 percent to 4 percent. From 2000 to 2007, the illegal population grew by another 200,000 and the unemployment rate dropped to 3.9 percent. Since the recession began, the illegal population in Arizona dropped by 100,000, yet the unemployment rate has more than doubled.

When the state’s economy begins to recover, the law will make it harder for companies to hire the workers they need to build new houses, harvest crops, and serve customers in retail and food service. Low-skilled immigrants do impose additional costs on state and local governments, but the critics exaggerate those costs and ignore the much greater economic benefits from allowing more legal immigrants to enter the country.

To solve the illegal immigration problem, we have to understand why low-skilled immigrants come here, legally or illegally.

Low-skilled illegal immigrants come here because there are jobs. In a typical year of normal growth in Arizona and across the country, we create hundreds of thousands of net new jobs in low-skilled categories like food-processing, landscaping, and retail.

Meanwhile, the number of Americans who have traditionally filled those jobs continues to shrink. The number of adults in the work force without a high-school diploma has dropped by 3 million in the last decade. It’s going to drop by another 2 to 3 million in the next decade.

We have tried a policy of enforcement only and it failed. The only answer is comprehensive immigration reform. Critics say we must take control of the border before we can do that — but we have the most control over the border in perhaps all of American history. Additionally, it makes no logical sense to insist that a flawed and unenforceable law be fully enforced before we consider changing it.

We could get control of the borders and reduce illegal immigration through enforcement, but at what cost? How many billions more do we need to spend? How many more agents do we need to station at the border? How many more factories and kitchens do we need to raid with guns drawn? How many more miles of ugly fence do we need to build along the Rio Grande and along our border, much of it across private property? And how many more liberties do American citizens need to surrender in the form of national ID cards and e-verification programs, all in the dubious cause of enforcing a law that is fundamentally out of step with the needs and values of our great nation?

There is a better way. We need to change immigration law so that it reflects the needs of our economy and the choices made by millions of Americans and immigrants in the labor market. Comprehensive immigration reform, including a robust temporary worker program, is the key to securing our borders, safeguarding our liberties, and expanding the economy to create betterpaying jobs for middle-class Americans.

TIM LYNCH: There are at least four problems with the Arizona law. First, that law is going to drive a wedge between the community and the police. If the local police involve themselves in immigration enforcement, crime victims will become more reluctant to come forward and report crimes to the authorities because they will fear deportation.

Women will become more reluctant to report rapes or beatings by abusive boyfriends. Families will become more reluctant to report robberies or kidnappings.

Students will become more reluctant to report beatings and robberies because they will fear for their parents should the authorities come to their household and learn about their vulnerability to deportation.

Driving such a wedge between the police and the public will make the community less safe.

Second, we need to remember that police forces have scarce resources. Police commanders have to set priorities for their personnel.

Homicides are more important than shoplifting and so on. Why divert the personnel who are working to respond to and solve violent crimes? Why take those agents off of their other duties so that they can arrest and book people who have overstayed their work visa? Police chiefs in Los Angeles, Houston, Philadelphia, Minneapolis, Tucson, and Phoenix have all said that the Arizona law will make matters worse, not better. We should be listening to these police officials.

Third, the Arizona law makes it a criminal offense for unauthorized aliens to engage in honest work. Picking fruit in a field will be a crime. Painting, landscaping, washing cars, working as a maid to clean a house or an office — these now constitute criminal offenses in Arizona. The worry used to be that people were coming across the border to take advantage of our generous welfare benefits. The response to that was, no, the overwhelming majority of people are coming to the United States so they can engage in honest work. But if honest work is made a crime, what will be the effects? We should call this the couch potato provision because, if it has any effect at all, it’s going to drive people out of the workplace.

We’ll have more people staying home and watching TV as they try to live on the earnings of other people in the household instead of going out and working.

The fourth problem concerns police stops and checks for immigration papers. Involving local police with immigration stops will create what those of us in the criminal law field call “low visibility police abuses,” particularly false arrests. I know when I use the term “false arrest,” most people conjure the image of somebody in handcuffs down at the local jail or police station, but the doctrine of false arrest is much broader. It has been defined as compelling a person to go where he does not wish to go or compelling a person to stay where he does not wish to stay. If the local police get involved in immigration checks, they will use the old trick of blurring the distinction between a simple request and a police order. That means some people will be coerced into answering questions that they do not have to answer, and others will be falsely arrested for choosing to stand their ground and remain silent.

Is there a racial aspect to all of this? Yes.

Hispanic Americans will bear the brunt of the false arrest situations.

Let me sum up. To the extent that crime is a problem, why drive a wedge between the community and the police? Why divert limited police resources away from the effort to solve violent crimes toward arresting and booking people on immigration offenses? Why turn the criminal law on those who are trying to engage in honest work? And the Arizona law will lead to scores of civil liberties abuses, mostly in the context of false arrests — and Hispanic Americans and Hispanic legal residents are going to bear the brunt of those false-arrest situations.

If the Arizona law is to be judged according to its actual consequences, instead of its promised benefits, then we have to conclude that it will create more problems than it solves.

MARK KRIKORIAN: There are two issues here, the macro and the micro. The micro issue is specifically the Arizona law. It’s a very modest law. It provides some additional tools for law enforcement but not many. One of the reasons I think it passed is because the Arizona legislature had run out of other things to do related to enforcement.

Frankly, Arizona’s efforts at immigration enforcement have worked. The Public Policy Institute of California has done research suggesting that the decline in the illegal population in Arizona has been greater than in other states because of Arizona’s immigration enforcement. The U.S. illegal population peaked at about 12.7 million in August 2007 and began falling right after, when the Bush administration reluctantly permitted enforcement of the immigration laws to some degree. We have had a significant decline in the illegal population, partly because of the economy, but partly because enforcement works.

It could have been Nebraska or Delaware, but Arizona is the obvious place because it’s ground zero on immigration.

But who cares where it was? They had to pick somewhere and make an example of it.

That’s essentially what we have seen in the past few months. The lawsuit the Justice Department filed does not address any of the objections people have made. The Justice Department claims that Arizona is pre-empted by federal law from doing this — which is false because the state is simply reinforcing federal law. More importantly, the lawsuit doesn’t even claim that Arizona is contradicting federal law, merely that the legislation is incompatible with federal policy priorities. In other words, the White House has decided to stop enforcing immigration laws, and how dare Arizona interfere with their priorities? The macro issue, though, is not the Arizona law itself. Rather, the debate is about whether we should have borders and whether we should have border enforcement.

The public support for the Arizona law has been consistent and strong despite furious attacks by the New York Times, the Wall Street Journal, and the Cato Institute. It reflects not just a general public support for immigration enforcement but a real frustration that enforcement is not happening. A credibility gap, if you will, on the part of the government. Nobody believes the federal government is actually committed to enforcing immigration laws.

In fact, our immigration system looks pretty tough on paper but isn’t enforced when push comes to shove. This is a function of the elite/public split over immigration.

Elites don’t believe in immigration enforcement. They don’t really believe in borders all that much. Our elites are disproportionably post-national and post- American. Our public wants the immigration laws to be enforced. Those groups that work on immigration issues day to day want loose enforcement. So to satisfy the public we have laws that look tough on paper.

Only with consistent, across-the-board, unapologetic enforcement do you create the political space for comprehensive reform.

GRISWOLD: There’s a contradiction in what Mark is saying. He says we have never really tried enforcement. He ridicules current enforcement efforts. And yet he argues that enforcement has reduced the illegal population by 1 or 2 million. I think that population declined because of the economy.

Arizona was one of those states where the economy fell particularly hard because of the housing bust.

We have a pretty good idea of how many immigrants would come into the country under a legalization program. A half million were coming in without the program at a time when people like Mark claim we weren’t doing anything to enforce the border. In the last 5 or 10 years, why weren’t we getting 5 million illegal immigrants each year? Because there weren’t jobs for them. If there aren’t jobs, they don’t come. There aren’t jobs during this recession and so they aren’t only not coming, they are going home.

A temporary worker program that accommodated the revealed demand of the U.S. economy would mean about a half million temporary worker visas. One of Mark’s favorite lines is “Nothing’s as permanent as a temporary worker.” But that’s not true of most temporary workers. The traditional pattern of Mexican migration to the United States has been circular. From the mid- 1970s on, when we had a kind of don’t ask don’t tell policy on immigration, 80 percent of Mexican immigrants went back home. A temporary worker program is the only way to solve illegal immigration.

KRIKORIAN: I want to touch on one thing that Dan alluded to: this idea of the revealed demand of the economy. He said we had about half a million illegal immigrants before the recession. It was a net increase of 500 thousand in the illegal population but the annual flow is actually 800 to 900 thousand a year. The reason the flow is bigger than the increase in the number of people is because about a quarter or more of each year’s “legal” immigrants are, in fact, illegal aliens using the system to launder their status.

In other words they are not going home.

They are just finagling a green card. And then the next batch of illegal immigrants is coming in behind them.

But let’s even say it’s half a million. That doesn’t reveal much because, as limited and inadequate as our enforcement efforts are, there is still some enforcement. It’s still an effort to get here illegally and stay here under the radar. Without immigration enforcement, even to the degree that we have, there would be significantly higher inflows. We would end up with easily double or triple the current number, accelerating dramatically over time. This is what President Bush called for in January 2004 when he gave his big immigration speech.

He wanted unlimited immigration. Any worker from anywhere in the world willing to work at any wage at any job anywhere in the United States for any employer. Another problem is what unlimited immigration would do to Mexican immigrants. Mexican labor is actually pretty costly compared to Bangladeshi, Nigerian, or Indonesian labor.

Once liberalized immigration policy got going and institutionalized, Mexican guest workers would be pushed out of work by much cheaper workers from Asia and Africa.

And the numbers would dramatically increase as it snowballed over time.