Illegal Immigrants Are Really Guest Workers. We Just Pretend Otherwise.

Eric Posner weighs in.
Feb. 4 2013 4:04 PM

There’s No Such Thing as an Illegal Immigrant

The United States has a well-functioning system of guest workers, whether or not it’s enshrined in law.

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The system exists because it serves America’s interests. Americans have a voracious appetite for unskilled labor—in the form of nannies, gardeners, restaurant workers, agricultural laborers, construction workers, and factory hands. And foreign countries contain huge pools of unskilled labor. Unskilled Mexican laborers would rather pick strawberries in the United States for a pittance than pick strawberries in Mexico that are exported to the United States, and for which they are paid even less than a pittance. U.S. businesses would rather pay illegal workers a pittance than Americans a pittance and a half.

What is ingenious about our system is that it allows us to take advantage of unskilled labor at low cost; exile those people who cause trouble; and ultimately grant amnesty to those who prove their worth by working steadily, learning English, and obeying criminal law. They will leave on their own when unemployment rises, and come back when labor is in demand. In this way public policy recognizes a sliding scale of legal protections for aliens, offering the strongest protections to those we want the most, and the weakest protections to those we are less sure about.

Why not recognize this guest-worker system in law? The bipartisan framework for immigration reform hints at such a change without explicitly endorsing it. But others have proposed this, and it was seriously considered in 2007 immigration reform negotiations.

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The idea of making our guest-worker system official is to move potential illegal workers into legal channels, where they can be tracked and also protected from exploitation. Liberals have long opposed any system that creates second-class citizens, but because liberals also oppose harsh immigration enforcement measures, they end up reaping the benefits of a pool of low-wage second-class citizens without calling them that. Unions oppose guest-worker programs because union organization requires a long-term commitment, which temporary workers cannot make, while they compete with union members for jobs.

But these are not the real obstacles to a guest-worker program. Enshrined in law, such a system could solve the problem of illegal immigration only if it authorized the same low wages and bad working conditions that illegal workers currently accept. The demand for such workers is so high precisely because they lack legal protections, and can be paid little and often treated poorly. The more generous the guest-worker program is, the more likely that it will be evaded. At the same time, however, neither Republicans nor Democrats will support a guest-worker program that permits foreign workers to be paid less than the minimum wage. And guest workers, like illegal immigrants, integrate themselves here and have children who become American citizens. It would be difficult to demand or force them to leave if they do not want to. In the end, they are not really guests.

Here’s a prediction. A path to citizenship will be offered to the current 11 million, and if it is not too onerous, most of them will take it. But others will not, planting the seeds of a new illegal population. Possibly a guest-worker program will be put into place, but even if so, it will be too small and too entangled with bureaucracy for employers and workers to want to use. Over the years, millions more people from Mexico and especially (as Mexico’s economy continues to improve) Central and South America will illegally enter the United States. They will be partly drawn by jobs, and partly by waiting family and friends, and the law will not deter them because they expect that sooner or later another path to citizenship will open up. Ten or 20 years from now, everyone will recognize a new illegal immigration “problem,” which we will again “solve” by removing the “illegal” label from the foreheads of the migrants and affixing the “legal” label in its place.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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