Commentary

Our Immigration Laws

By Daniel Griswold
This article appeared on the National Review (Online) on May 21, 2002.

After reading John Fonte’s “Dogmatic Libertarians,” I could hardly recognize myself — in fact, I was tempted to write myself an e-mail to protest my extremist views! According to Fonte, my position on immigration “expresses utter contempt for American democracy and the principles of republican self-government.” My views betray “an extreme laissez-faire dogmatism” out of step with Hayekian thought on the rule of law. And, despite my claims to the contrary, I am a secret advocate of (hide the children!) “open borders” — entirely indifferent to whether an arrival on our shores is a Middle Eastern terrorist or a Mexican farm worker. Those are harsh words, even for the immigration debate.

In an effort to rehabilitate myself, let me address the major misunderstandings in Fonte’s response. First, a lot of running room exists between the straw man of open “Terrorists Welcome” borders and the radical restrictionism of Pat Buchanan, John O’Sullivan, and Mark Krikorian. Fonte fails to note the important fact that, in my NRO column and elsewhere, I have strongly endorsed the central provisions of the Enhanced Border Security and Visa Entry Reform Act signed this week by President Bush. The new law requires tamper-proof, biometric visas and passports; forwarding of passenger manifests; better tracking of student visas; and establishment of a database of suspected terrorists, to be used to screen visa applicants. It also bars certain types of visas for people from countries that sponsor terrorism. In short, the law seeks to close our border to terrorists, while keeping it open to peaceful tourists and immigrants.

Second, Fonte tries to prove my alleged indifference to issues of border security by citing my skepticism toward an INS initiative proposed two years ago to crack down on immigrant smuggling rings. Using border smugglers, or “coyotes,” is not the preferred channel for terrorists who want to enter the United States. Every one of the 19 terrorists responsible for Sept. 11 entered our country with legal visas. Smuggling is almost exclusively an economic phenomenon, a kind of black market matching willing workers outside the United States with willing employers inside. Like bootlegging during Prohibition, it is the predictable response to a misguided government effort to criminalize otherwise normal and peaceful human activity.

By realizing President Bush’s stated goal of legalizing Mexican migration, we would eliminate most of those smuggling operations overnight. We would drain the underground channels through which terrorists might try to enter the country. Furthermore, we would free up law-enforcement and border-control resources for catching terrorists who want to blow up our buildings, rather than squandering those resources to intercept the Mexican construction workers who want to help us build them.

Finally, let me pledge my allegiance to the rule of law, American democracy, and the principles of republican self-government. I am all in favor of the right of the United States to, in Fonte’s words, “establish and enforce rules to regulate the admission of non-citizens.” I just differ with Fonte and the restrictionists on what those rules should be. If a non-citizen wants to enter the United States to work and otherwise live peacefully (and not be a charge to taxpayers), we should be inclined to let them in — as our government was throughout most of its history. If non-citizens want to enter to commit terrorism or other criminal acts, we should by all means keep them out.

We can all agree that the rule of law should be respected and enforced, but that law should be in harmony with justice and normal human aspirations. In his recent book, The Mystery of Capital, Hernando de Soto describes the plight of millions of people in less-developed countries where the law has made it virtually impossible for people to acquire legal title to the land on which they live, farm, and do business. Those undocumented millions are only trying to better their condition through peaceful work, yet they are illegal squatters according to the law, subject to fines and jail if prosecuted.

According to de Soto, the United States was settled largely by squatters, “illegal aliens” of their day who began to farm, mine, and otherwise improve land to which they did not have strict legal title. Instead of cracking down on those undocumented squatters, in a misguided zeal to enforce bad laws at tremendous human and economic cost, we changed the law, declared amnesty, and gave them documents. As de Soto wisely concludes: “The law must be compatible with how people actually arrange their lives.”

America’s immigration laws fail that test.

Daniel Griswold is the director of the Center for Trade Policy Studies at the Cato Institute.