At a Cato event last week, Sen. Ron Johnson announced that he would be introducing new legislation that day to allow states to sponsor foreigners to live and work in their states. The innovative idea has produced a huge amount of interest and responses. Several business and conservative groups endorsed the bill. Sen. John McCain cosponsored it. Positive write-ups ran online in the Washington Post, The Week, and other outlets. The Wall Street Journal, New York Times, Los Angeles Times, and the Economist have all run articles supporting Congress taking this approach.

However, the organizations that are categorically opposed to all additional immigration—NumbersUSA and Center for Immigration Studies*—as well as a National Review columnist have also responded with some criticisms. I will focus primarily on the criticisms that are specifically related to guest worker programs or state-sponsored visas in particular. Their criticisms arrive primarily from their flawed reading of the bill, assuming that they did read it.

NumbersUSA writes:

Critically, unlike even the most flawed of existing guestworker programs, this new program establishes no uniform rules to offer even nominal protections for American workers.

This criticism is strange, given that the entire point of the legislation is to allow states to decide the conditions under which migrants enter. That said, it’s not even true. Under the bill (p. 5), states are required to allow any worker admitted under the program to leave their initial employer. This is an incredibly important protection for American workers. Under the current federal programs, migrants are often stuck with the employer that sponsored them. This can make them more attractive than U.S. workers because the migrants can’t negotiate fairly for wages.

More from NumbersUSA:

DHS doesn’t have the resources to enforce current immigration law with uniform regulations. Expecting it to juggle as many as 51 new and distinct sets of rules under this program is ludicrous.

This misses the point again. The fact that DHS cannot enforce the current rules is exactly why devolving the rulemaking to the states makes sense. DHS doesn’t have to “juggle” if the states are the ones setting the rules and informing DHS of the violations of their rules, as the bill requires (p. 4). The level of government with the most at stake would conduct the oversight, as opposed to the current system where the level of government with almost nothing at stake is responsible for enforcement.

Center for Immigration Studies (CIS) writes:

There is little reason to think that the state- or regional-system(s) urged by the Cato Institute would be run any better or more honestly than the cornucopia of malfeasance that has attended investor visa programs.

The EB-5 investor program gives permanent residency to immigrants who invest at least $500,000 in a rural area or an area with high unemployment and that investment creates at least 10 jobs. State agencies have a limited role in selecting the areas where investment should go. CIS notes a few dozen cases out of literally tens of thousands of EB-5 investments where investors may have been defrauded. Pinning all of these cases on the states is unwarranted.

The few cases where states may have misused the EB-5 have arisen in part because 1) there’s a disconnect between state decision-making and federal oversight, and 2) the governors have total control over the decision-making. The bill eliminates the first problem—states would set and enforce the rules, having full accountability for the results—and it addresses the second one by imposing democratic oversight—state legislature must enact legislation creating the rules for the programs, not leave it totally to the state agencies.

More from CIS:

If [the migrants left the state], in violation of the terms and conditions of the program, whatever it might be, who would be expected to clean up the mess, find the aliens, and deport them? …the states or their subdivisions would most assuredly hand the mess over to the federal government…. the states and regions would then demand to re-fill the now-vacated jobs.

This criticism comes from ignoring the actual language in the bill. States are responsible for the full cost of apprehending and removing any person that they sponsor. If they fail to pay, they get no more visas. Moreover, the concern that guest workers will overstay and violate their status in large numbers has always been a lie. Lesser-skilled federal guest workers make up barely 2 percent of all overstays, according to the Government Accountability Office (GAO), implying an overstay rate of less than 3 percent. This low rate is due to the powerful incentive guest workers have to stay legal and be eligible to be invited back.

The bill builds in the same incentives, making eligibility for renewals or readmission conditional on compliance. Moreover, it requires states to maintain the same overstay rate or else each migrant would be required to post a $4,000 bond prior to entry, returned only if they exited in compliance with the rules. If this didn’t work, the visas to the state would be cut in half, and in half again, and in half again, and finally eliminated entirely for 5 years (p. 27). Again, these are incentives that the federal government does not have to enforce its rules, but would be imposed by this bill. CIS needs to (re?)read the bill.

CIS concludes:

Finally, let us return to the question of “whether the federal government should maintain its near-complete monopoly over legal immigration”: I thought that question was resolved in 1789 when our founders brought the Constitution into force, specifying in Article I, Section 8, Clause 4, that “The Congress shall have Power To … establish an uniform Rule of Naturalization,” which has repeatedly been construed by the Supreme Court to include immigration generally.

Congress has the power over immigration, but the Arizona v. U.S. and Chamber v. Whiting cases clearly explain that states are limited only to the extent that Congress chooses to limit them in the area of immigration. In any case, the bill does not concede to the states the authority to admit people to the country. It simply allows them to “sponsor” them for visas issued by the federal government and federal rules. States already act as sponsors on behalf of their foreign-born employees or students at their public universities. U.S. employers and U.S. citizens also sponsor workers and immigrants for various purposes. Can the federal government really not take into account the desire of any entity other than itself when deciding who to admit? Obviously not.

National Review writer Fred Bauer writes:

Guest-worker programs drastically undercut civic belonging. It is probably not healthy for a republic to have a large class of residents who are viewed purely as economic resources with no stake in American society.

The argument that noncitizens undermine “civic belonging” is untestable speculation that is the social science equivalent of counting how many angels can dance on the head of a pin. It makes the left-wing argument about the benefit of diversity seem entirely science-based. The left at least makes claims about how objectively measurable facts relate to specific outcomes unlike vague feeling-based claims of “civic belonging.” Mr. Bauer’s same criticism could be levelled at a resident of one state residing in another and not bothering to update his voter registration.

Using Bauer’s reasoning, one could actually make the case that non-citizen residents have a much greater stake in American society. Migrants often come from poorer countries, know the value of prosperity as a result, and truly recognize how unique America is. At the very minimum, they treasure America more than some of our fellow native-born Americans who are apparently content with subsisting off of welfare and languishing in permanent unemployment for lack of a desire to migrate to prosperity in another area.

Perhaps the migrants view the situation differently than Mr. Bauer, believing that employment will better their situation in a land of opportunity. Recognizing that individuals have their own desires is the core of treating them as people, not just economic resources, or as Mr. Bauer prefers, pawns in a collectivist scheme.

National Review’s Mr. Bauer continues:

Minor children are allowed to go with guest workers, and those children will be able to go to public schools, which in part are financed by federal tax dollars. So, when a state chooses to admit guest workers, it is making decisions that very much have a bearing on the federal coffers.

Mr. Bauer neglects to mention that, to begin with, the bill completely walls off the federal welfare state and tax credits from the state-sponsored workers. Thus, they would be paying many taxes for Social Security and Medicare that many of them will never receive, so even if they receive some indirect benefits—roads or education—they would be paying far more in taxes. My recent report conservatively estimated more than $100 billion federal surplus every year from these state-sponsored workers. And states could also choose not to admit the children as well (p. 28).

National Review’s Mr. Bauer continues:

Moreover, an expansive guest-worker program would almost certainly ignite a huge effort to ensure that guest workers and their families have access to at least some federal benefits… If [Republicans] tried to withhold benefits from guest workers, they would be smeared as cold-hearted and “anti-immigrant”…

Even when pro-immigrant members of Congress correct the supposed problems with the system, the opponents of reform always find a way to oppose it anyway, raising the specter of what may happen in the future. Yet federal guest workers have been barred for all means-tested federal public benefits for decades, and the restriction has remained. And while it’s true that Democrats could try to smear them as cold-hearted, public opinion—unlike on mass deportation—is on the side of Sen. Johnson. People oppose welfare for immigrants, so Democrats would most likely lose this (entirely hypothetical) fight.

More from National Review:

Birthright citizenship complicates all guest-worker programs in the United States and means that the nation as a whole would be even less insulated from the consequences of a state-based guest-worker program.

The goal of state-based visas is not to guarantee that there are zero consequences of immigration for the country as a whole, but rather to make the currently positive consequences more positive. As my report about the bill explains, the goal is to build flexibility into our economic migration system in order to allow it to respond to economic changes faster. This is exactly what is lacking in the federal monopoly where changes happen once every three decades. Certainly, there will be some impact nationally, but the net impact will be even more positive than under the sclerotic federal system. 

More from National Review:

The atrocities of optics presented by state-based guest-worker programs would also be legion: tenements swollen with guest-workers and their beleaguered families, young children denied visits to the doctor, [and] companies laying off Americans to hire phalanxes of underpaid guest workers, and tearful U.S. citizens waving goodbye to their guest-worker parents…

It’s amazing how Mr. Bauer can see the future of a program that has never existed. It’s remarkable for a conservative to claim that the only way to succeed in the United States is with government-funded welfare, denying that private charity and individual action could not lead to better outcomes. Yet the evidence indicates that when federal welfare was restricted to immigrants, those in the states that extended state-funded benefits had worse outcomes than in states that didn’t. Conservative Harvard economist George Borjas found that the immigrants in the anti-welfare states had greater reductions in poverty and higher rates of health insurance because they had an incentive to find employment.

His assumption that guest workers would be “underpaid” is pulled from thin air. He has no idea what the regulations for this non-existent program would be. (Retooling old rhetoric to a brand new idea is a common theme in all three of these responses.) 

Some immigrants will have to return to their home countries with their U.S.-born children if they lose their employment. But some states could adopt rules that allow long-term state residents to remain in the states for a period while they look for jobs, especially if they have U.S. children. And again, if they do have to leave, let immigrants make the choice whether they want to come under those conditions. There is no perfect system. There will always be difficult choices. The question for policymakers is which set of policies reduce potential downsides and increase the potential upsides.

More from National Review:

As Nicholas Eberstadt noted in a recent cover story for Commentary — a piece that Senator Johnson himself referenced in his remarks at Cato — the United States has experienced a growing crisis of work over the past 15 years. …Guest-worker programs weaken the viability of the average worker, and in so doing they damage the culture of work.

On my invitation, Nicholas Eberstadt spoke at Cato about his recent book on this topic—not a single word of his book supports the hypothesis that U.S. workers’ problems are caused by immigrants. Indeed, he repeatedly rejects this hypothesis (pp. 70, 76), and as I note in my commentary on his book, if it were true that increased foreign competition was the cause of men dropping out of the workforce, foreign-born men should be leading the way out of the workforce because studies have repeatedly shown that the only clear and large negative wage effect from immigration is on the immigrants already here. Yet they are not. Despite increased competition, they are working more than ever.

More from National Review:

A guiding principle of American policymakers for many decades was that the completely fluid movement of capital, labor, and goods across international borders was a utopian vision, and, like many utopian visions, probably could not be achieved. Instead, it was thought wiser to increase the fluidity of movement within the United States. The absence of trade and immigration barriers between states, the development of federal infrastructure programs, and other efforts were designed to realize that vision of internal fluidity. A radically federalized immigration policy would reverse it, making the internal movement of labor more difficult in order to increase movement across international borders.

This objection is just bizarre. Mr. Bauer is appealing to a principle of policy that he rejects—the fluid movement of labor—as a basis for rejecting reforms in that direction. In any case, the bill would not make internal movement more difficult. For people already here, the bill makes no difference at all on that score, and because the bill contains provisions allowing states to share state-sponsored workers across interstate lines, total movement between states would almost certainly increase under this legislation. It would certainly increase it within states, as the bill guarantees the ability to change employers (p. 5). To the extent that labor fluidity—international or domestic—is a goal of policy, then that is a reason to support this idea. It will increase both.

The idea that this is a “radically federalized immigration policy” is just not true. Its purpose is to federalize a portion of the system to allow faster policy responses and more tailored approaches to develop, not to devolve the entire system. This legislation is a complement to, not a rejection of the current system.

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