American Lawbreaking

Illegal Immigration
The law, lawyers, and the court.
Oct. 18 2007 7:40 AM

American Lawbreaking

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On Aug. 10, 2007, the Bush administration announced that it would try something no modern administration has succeeded in doing: enforcing the immigration laws. More specifically, the administration wants to institute serious fines for any employer who fails to fire workers lacking legitimate Social Security numbers. If Bush's plan is ever implemented, it will require the sacking of millions. Don't hold your breath. The administration is trying to get at one of America's favorite instances of tolerated lawbreaking: our de factoguest-worker program, created by the nonenforcement of immigration laws. And while no one will admit it, our current system is popular enough that his effort seems destined to fail.

Illustration by Alex Eben Meyer. Click image to expand.

For the last several decades, internal enforcement of the immigration laws has been, by and large, sporadic and symbolic. In 2004, the number of fines issued against domestic employers for employing illegal immigrants was a grand total of three. Politicians usually prefer to talk about "securing our borders," a method of stopping illegal immigration that has great advantages for all concerned. It sounds tough. It's easy to fund. And it doesn't deprive us of any of the benefits of illegal immigration, because it doesn't work. In fact, it's such a laughably ineffective way to deter illegal immigration that it almost seems designed to fail.

The enforcement math at play here is simple and mainly uncontested. There are millions of illegal immigrants already in the United States, millions more people who might enter, and millions of potential weak spots along the borders. These numbers make border enforcement a fruitless way of trying to "stop" illegal immigration.

Many illegal immigrants get to the United States on visas they overstay, bypassing the border altogether. Border enforcement can even be counterproductive, because it discourages those illegal immigrants who find themselves inside the country from ever trying to leave. And even when border agents catch people, it cannot be anything but a system of "catch and release," unless the United States is willing to open a Guantanamo prison complex the size of Rhode Island.

Studies and statistics suggest that the net impact of border enforcement on total immigration rates has been something close to zero—making it more like a cultural subsidy than law enforcement. Despite the great increases in border enforcement in the 1980s and 1990s, there has been no measurable effect on the rate at which the illegal immigration population in the United States is growing. It is the classic example of applying a teaspoon solution to an ocean problem.

Meanwhile, employers and contractors are a much more obvious and logical target for a serious enforcement strategy. The number of employers who hire large numbers of illegals is not in the millions, but in the tens of thousands. Employers are large, sensitive to fines and threats of imprisonment, and tend stay in one place. Basic enforcement theory—the theory of "gatekeeper enforcement"—clearly suggests targeting the few, not the many. Gatekeeper enforcement is what government does when it actually wants to stop something illegal from happening.

So why has the United States chosen a method—border enforcement—that's less effective than zealous domestic prosecution? If we thought illegal immigration was really a bad thing—if, say, the problem were the unlawful arrival not of workers, but of disease-bearing chickens—the government might rapidly  deploy the most effective form of enforcement, with the support of all parts of society. But instead the nation tolerates illegal immigration to create a de factoguest-worker program. Immigration is what economists call "trade in services," and effective enforcement would make most services more expensive, just as blockading China would make many goods more expensive. It can be tough on low-wage workers, but the United States is richer overall because we get cheaper labor, while Mexicans and other workers are richer for selling it.

If all this is true, isn't creating a legalized guest-worker program the right thing to do? That's where political failure kicks in, for the political discussion of immigration policy is both inflamed and insane. The Republican Party is split between free traders and nativists, and the latter are much more vocal. Many in the Democratic Party—loyal to organized labor on this point—go nuts when it comes to guest-worker programs. Illegal immigrants themselves don't have representation. It all adds up to a big political zero.

Under the de factoguest-worker system, the United States gets to have its cake and eat it too. We receive all the advantages of cheap labor without the duties of having new citizens. We don't actually have to pass an unpopular or complex law. Elected officials and talk-radio hosts get to talk tough about "securing the border" which is tough on the actual migrants, but doesn't raise any actual danger of halting illegal immigration, hurting the economy, or displeasing large employers. And grown men get to fly giant model airplanes in the desert to "patrol" the Mexican border. Hypocrisy, in short, has its comforts.

Immigration policy is perhaps the strongest example of the ways in which tolerated lawbreaking is used to make the legal system closer to what lies in the economic interests of the nation but cannot be achieved by rational politics. All this is why the Bush administration faces an uphill battle in the course of trying a real internal enforcement strategy. My bet is that internal enforcement will be stopped somehow, someway. Let's be honest: We'll never say it, but this country must love illegal immigration.

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