Our Immigration Laws

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

After reading John Fonte's "Dogmatic Libertarians," I couldhardly recognize myself -- in fact, I was tempted to write myselfan e-mail to protest my extremist views! According to Fonte, myposition on immigration "expresses utter contempt for Americandemocracy and the principles of republican self-government." Myviews betray "an extreme laissez-faire dogmatism" out of step withHayekian thought on the rule of law. And, despite my claims to thecontrary, I am a secret advocate of (hide the children!) "openborders" -- entirely indifferent to whether an arrival on ourshores 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 majormisunderstandings in Fonte's response. First, a lot of running roomexists between the straw man of open "Terrorists Welcome" bordersand the radical restrictionism of Pat Buchanan, John O'Sullivan,and Mark Krikorian. Fonte fails to note the important fact that, inmy NRO column and elsewhere, I have strongly endorsed the centralprovisions of the Enhanced Border Security and Visa Entry ReformAct signed this week by President Bush. The new law requirestamper-proof, biometric visas and passports; forwarding ofpassenger manifests; better tracking of student visas; andestablishment of a database of suspected terrorists, to be used toscreen visa applicants. It also bars certain types of visas forpeople from countries that sponsor terrorism. In short, the lawseeks to close our border to terrorists, while keeping it open topeaceful tourists and immigrants.

Second, Fonte tries to prove my alleged indifference to issuesof border security by citing my skepticism toward an INS initiativeproposed two years ago to crack down on immigrant smuggling rings.Using border smugglers, or "coyotes," is not the preferred channelfor terrorists who want to enter the United States. Every one ofthe 19 terrorists responsible for Sept. 11 entered our country withlegal visas. Smuggling is almost exclusively an economicphenomenon, a kind of black market matching willing workers outsidethe United States with willing employers inside. Like bootleggingduring Prohibition, it is the predictable response to a misguidedgovernment effort to criminalize otherwise normal and peacefulhuman activity.

By realizing President Bush's stated goal of legalizing Mexicanmigration, we would eliminate most of those smuggling operationsovernight. We would drain the underground channels through whichterrorists might try to enter the country. Furthermore, we wouldfree up law-enforcement and border-control resources for catchingterrorists who want to blow up our buildings, rather thansquandering those resources to intercept the Mexican constructionworkers who want to help us build them.

Finally, let me pledge my allegiance to the rule of law,American democracy, and the principles of republicanself-government. I am all in favor of the right of the UnitedStates to, in Fonte's words, "establish and enforce rules toregulate the admission of non-citizens." I just differ with Fonteand the restrictionists on what those rules should be. If anon-citizen wants to enter the United States to work and otherwiselive peacefully (and not be a charge to taxpayers), we should beinclined to let them in -- as our government was throughout most ofits history. If non-citizens want to enter to commit terrorism orother criminal acts, we should by all means keep them out.

We can all agree that the rule of law should be respected andenforced, but that law should be in harmony with justice and normalhuman aspirations. In his recent book, The Mystery of Capital,Hernando de Soto describes the plight of millions of people inless-developed countries where the law has made it virtuallyimpossible for people to acquire legal title to the land on whichthey live, farm, and do business. Those undocumented millions areonly trying to better their condition through peaceful work, yetthey are illegal squatters according to the law, subject to finesand jail if prosecuted.

According to de Soto, the United States was settled largely bysquatters, "illegal aliens" of their day who began to farm, mine,and otherwise improve land to which they did not have strict legaltitle. Instead of cracking down on those undocumented squatters, ina misguided zeal to enforce bad laws at tremendous human andeconomic cost, we changed the law, declared amnesty, and gave themdocuments. As de Soto wisely concludes: "The law must be compatiblewith how people actually arrange their lives."

America's immigration laws fail that test.