Category Archives: immigration

Yet More Thoughts on Immigration

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I want to comment a bit about one leg of our immigration policy, that of what to do about the illegal aliens currently present in the US.

Roberto Suro has a recent piece in The Washington Post that bears on this; although he talks primarily about a second leg of our immigration policy, one that also must be solved: how we let aliens into our country (an immigrant is someone who intends to settle permanently, so I’ll stick to aliens in this post).  All three legs (entry, border security, the existing population of illegal aliens and immigrants), though, must be handled together, or the totality of our immigration policy will continue to be the failure that it is today.

Suro noted,

Along with the many [immigrants] looking to make a permanent home in the United States came those who had no intention to stay, and who would make some money and then go home.   Between 1908 and 1915, about 7 million people arrived while about 2 million departed.  About a quarter of all Italian immigrants, for example, eventually returned to Italy for good.

Today, we are much more rigid about immigrants. We divide newcomers into two categories: legal or illegal, good or bad. We hail them as Americans in the making, or brand them as aliens fit for deportation.

And

To start, we can recognize the new birds of passage, those living and thriving in the gray areas. We might then begin to solve our immigration challenges.

…

If we accept that there are spaces between legal and illegal, then options multiply.

The second part, though, is simply wrong.  There can be no gray area between legal and illegal; that would only perpetuate the limbo in which the illegal aliens currently exist.  Instead, we need to broaden what constitutes legal, and make it easier for these folks to comply.

Who are these folks living this shadow existence?  They are crop pickers, violinists, construction workers, entrepreneurs, engineers, home health-care aides and particle physicists.  These folks are active participants in a global economy driven by the flow of work, money, and ideas; they wish to come and go as opportunity calls them. They manage to have—they often are forced to have—a job in one country and a family in another.  Thus, they are forced to straddle—or avoid—the laws of multiple jurisdiction, with particular emphasis in this context US law on the part of the worker.

Nevertheless, we need them in the US being productive while they’re here, and it’s unnecessary to force them to choose to be here permanently, or to lie about their intent to be here permanently as a precondition for being here legally at all in order to achieve that.

Thus, I propose the following for the current population of illegal aliens.  I’ve proposed a general idea elsewhere, and Congressman Luis Gutierrez (D, IL) and Senator Marco Rubio (R, FL) have ideas that bear on this.

We should issue a “green card lite” for those who come and go at a relatively high rate—migrant workers, for instance, but not exclusively.  Such a card would be good for an extended number of years, allowing the holders to cross the border multiple times as their (seasonal, perhaps) work requires, without having to go through the entry bureaucracy—or risk coyote depravations—each time they want to reenter.  The folks who are here already and want such a card, though, must provide documentation to support their claimed work history.

Additionally, in support of that documentation requirement, I suggest a one year amnesty for employers of (potentially, from their perspective; I assume the good intentions of the vast majority of employers) immigrants, illegal or legal, so those employers can provide their documentation supporting the (illegal) immigrant’s application without fear of government reprisal.

Moreover, a regular green card, for those who aver a longer duration/steadier residency should be far more easily requestable and far more quickly issued, with a similar requirement for work history documentation from those who are already here and want to come out of the shadows.  The employer amnesty should be extended to employers of this group for the same reason.

Note, though, that I’m not proposing amnesty for the illegal aliens themselves.  As many have suggested, these must pay a penalty, variously including a fine and/or a requirement to leave the country and then to reenter legally.  I believe that both penalties should be applied.  The fine, though, must be sized to the illegal alien’s ability to pay, and it must be large enough to sting but not so large as to be an impenetrable barrier.  The requirement to leave the country and return, though, I hold can be satisfied by traveling to the nearest consulate in the US, paying their fine, and applying for their green card from within that consulate.

On the other hand, those who’ve used falsified or stolen documentation (e.g., a false or stolen social security number) to facilitate their getting hired must pay a sterner penalty.  These must leave the US voluntarily for some period of years before applying for a green card (lite), and they must apply as though they have no work history to claim (they’d a first-time immigrant, now).  Failure to leave voluntarily should result in deportation, never to be allowed back in.

Finally, notice that there is nothing in this that presupposes the now legal immigrants wanting to become citizens.  Nor need there be.  As demonstrated by those immigration statistics at the beginning, when folks are in our country openly and freely, our country sells itself.

Let’s not forget, though, the other two legs of our immigration problem.  We also need to look at the difficulties we inflict on those who want to enter our country for legitimate purposes—to settle here, for instance, or to “make some money and then go home.”  And we also need to get serious about securing our borders so that we do a better job of filtering out the ones who come here with nefarious purposes so that only those who want to come here to settle and contribute, perhaps (but not necessarily) to become citizens, or to be here for a time and then go home, can do so.

A Grievous Supreme Court Error

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The Supreme Court has ruled unfavorably on Arizona’s SB1070, with which it attempted to secure its border with Mexico and the safety of Arizona citizens (the ruling, with the dissents, can be read here).  Sort of letting stand a provision that required Arizona police to check the immigration status of those they suspect may be in the country illegally (the Court sent this back to the lower court for further argument), they struck the rest of the law making it a crime for immigrants to look for work without work permits (never mind that Federal law requires the permits), to not carry their immigration papers (never mind that Federal law requires legal aliens to carry these papers), and let police arrest those whom they suspect committed crimes for which they could be deported.

Justice Scalia, in his dissent (to, apparently, a 5-3 decision, with Justice Kagan having recused herself), had the right of it:

Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.

As did Justice Thomas, for a different, narrower, reason:

I agree with Justice Scalia that federal immigration law does not preempt any of the challenged provisions of SB 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the ‘ordinary meaning’ of the relevant federal laws and that of the four provisions of Arizona law at issue here.

And Justice Kennedy, writing for the majority has revealed an appalling mindset for an American judge:

Some discretionary decisions involve policy choices that bear on this Nation’s international relations.

This is a domestic law, and a domestic concern. Foreign opinion has no bearing. But this Progressive administration gave their view of American sovereignty when it encouraged 11 foreign nations to join the suit at the Appellate level.

We badly need an election, so this error can be corrected legislatively.  Oh, wait….

Illegal Aliens and Amnesty

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Late last week, President Obama signed an Executive Order wherein he announced his decision to shirk his Constitutional duty to “take Care that the Laws be faithfully executed.”  This also violates his personal promise to do so—not a campaign promise, but his oath of office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

His EO does this: it protects from immigration law enforcement those illegal immigrants who came to the US before they were 16, are younger than 30, have committed no major criminal offenses, have been in the country for at least five continuous years, and have a US high school diploma or a GED or served in the US military.

This seems like a good idea, and it even has elements of Congressman Luis Gutierrez’ (D, IL) and Senator Marco Rubio’s (R, FL) plans for handling the children of illegal aliens.

However.

John Yoo, Deputy Assistant Attorney General in the Bush the Younger administration, had this to say about the Obama Amnesty Program:

President Obama’s claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the unprecedented stretching of the Constitution and the rule of law.  He is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served.  There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).

Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.”  This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it.  President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy.  To do so violates the very core of his constitutional duties.

As  Former Attorney General Alberto Gonzales notes, the move is both “political” and “well short of what we need as a country.”  He told Fox News in a recent interview,

Substantively…it fails to deal with securing the border, visa over-stayers, enforcing tougher work place enforcement, and the millions of adults that came into the country illegally as adults.

Procedurally…it’s bad timing because it’s being done during what [Gonzales] calls “political silly season.”

“Rightly or wrongly, it is viewed as political, given the fact that we’re in an election season, and this is something that he could have done, certainly, well before now,” he said.

It is political, though; it doesn’t only look like one.  It’s naked vote pandering.  This “fix” is only temporary, as Obama himself admits; one President’s EO can be rescinded by another.  Moreover, what is it that Obama is saying to Americans and to those who come here from other countries?  He’s saying, as Gonzales emphasizes, that laws are what Obama says they are:

…by selectively failing to enforce the law faithfully he’s not doing his job making sure all laws are faithfully executed.

There’s that violation of a promise thing, again.  And

…there are things that should be done in conjunction to reassure everyone that not only are we a compassionate nation in taking care of these kids, but we’re a nation of laws, and that we enforce our laws.

Gonzalez is being polite, though.  Obama’s vote pandering by giving amnesty to some illegal aliens does nothing actually to address wither of the nation’s problems in this context: our immigration difficulties or our problem of what to do with the existing population of illegal aliens.

No effort has been made at all by Obama to address that overall problem of immigration into America: securing our borders (although, he is actively suing states to prevent them from doing so within the framework of existing Federal law); making it easier for foreigners to enter our country legally, and to stay here longer (e.g., once they’ve graduated from college, they have to leave; when the time limit on any other entry permit has expired, they must leave; when their work visas have expired, they must leave; etc.  In the meantime, it takes weeks to months to get a green card or to convert an existing visa to one, and other visas are shamefully quota-ed); or to deal with the existing population of illegal aliens—a problem for which Congressman Gutierrez and Senator Rubio, as I mentioned above, have good beginning ideas.

Nor does this address the millions of Americans—citizens all—who are out of work today, or are badly underemployed.  This Obama Amnesty Program adds an additional roughly 800,000 individuals to that pile (they are “required” by his Amnesty Program to apply for work permits, which are good for two years; although, in truth, there seems to be no requirement actually to apply for work with those permits)—where will they fit in the millions-long queue?  If they go to the end of the line, what good will the work permit do them beyond allowing the fiction of their remaining in the US “legally?”  Will the work permit then make them eligible for 99 weeks (nearly those two years) of unemployment insurance (or the reduced duration, should the Democrats actually allow the current 99 weeks to expire without extension)?  On the nickels of the states forced to harbor these people?

And there’s more.  Whose definition of “significant misdemeanor” will apply, and what is an example of such a thing?  The illegal aliens already have committed one significant illegal action: they’re in the country illegally.

In the context of this post, that they were brought here without the capacity to decide for themselves whether they wanted to commit this offense certainly might be cause for mitigation.  But we can’t forget that, having reached their age of majority, they certainly did have the capacity to decide for themselves whether they wanted to continue the (now their own) offense.  However, we also cannot forget the power of family ties, the developed community ties, their childhood histories, and so on.  Plainly, for the children and young adults in this situation, a solution will not be easy.  But that puts a premium on solving the illegal alien problem as a whole, and not just layering on epicycles of special case treatments whose aggregation will doom the whole orrery to catastrophic failure.

Finally, as Senator Lindsey Graham (R, SC) said,

I think it’s pretty clear there are 10 million illegal immigrants not affected by this.  What about them?  I don’t think it’s a brilliant move for a president of the United States to tell a federal agency to stop enforcing a law.

And as Governor Mitt Romney pointed out, in an echo of Gonzales,

If he felt serious about this he should have taken action when he had a Democrat House and Senate, but he didn’t.

In the end, though, I don’t think Americans of Hispanic heritage are as stupid as Obama thinks they are.

Marco Rubio’s Immigration Reform

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Senator Marco Rubio (R, FL) has an idea for immigration, one that focuses on the children of illegal aliens:

The first step I’m trying to make is to deal with children basically that were brought here at a very young age through no fault of their own, find themselves here undocumented.… All I’m trying to do is to help these kids do right what their parents did wrong.

and it looks like this.  The time durations, at this point, are vague as Senator Rubio says these still are being developed as he works toward enough Senate sponsorship to bring it to the floor for debate.  If these general criteria are met,

  • high school graduate
  • no criminal record
  • been in the US for a certain period of time and came here before a certain age
  • invested in our society

then these children, now high school graduates, would be eligible to apply for a non-immigrant visa.  This visa would enable the holder to obtain a driver’s license but not to vote.  This visa also would enable the holder to stay in the US legally to complete his education—e.g., go to college.

The “certain age” requirement is intended to include young teenagers and children but exclude older teenagers and adults—i.e., those in a position to exercise a choice about whether to enter the US illegally would be ineligible, but those who were ” brought here by their parents or by circumstances” would be eligible.

Senator Rubio discriminates this from amnesty in a couple of ways.

There’s a difference that we’ve long recognized in this country, for example, in the case of refugees, between the people who have chosen to break the law and be here illegally and those who were either brought here by their parents or by circumstances[.]

Moreover, unlike amnesty, a green card would not automatically be awarded to a non-immigrant visa holder.  Only after the non-immigrant visa holder has been in the US, acting as a productive member of his community, for a number of years after obtaining this visa, would the holder would be eligible to apply for a green card, if he wished.  He would have to do so, though, through then-existing channels; there would be no special pathway either for the green card or for citizenship.

This is an outline of a plan, and as he notes, it’s a first step.  It doesn’t address the question of the adult illegal aliens, nor does it address the other two legs of proper immigration reform: securing our borders and making it far easier for immigrants to enter our country legally.  However, this is a good start, and it’s well worth supporting.

Another Musing on Immigration

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Juliana Gruenwald, in a National Journal piece, reports that Senators Mark Warner (D, VA), Chris Coons (D, DE), Jerry Moran (R, KS) and Marco Rubio (R, FL) are proposing an immigration bill—Start-up Act 2.0—that would create two new visas.

One visa would make it easier for foreign students who’ve gained American schools’ post-graduate STEM degrees to remain in the US after graduation.  These folks also would be eligible for permanent residency if they then remained employed in a STEM field for the next five years (and presumably eligible for citizenship, but this visa is separate from that).

The other visa would be for the roughly 75,000 skilled legal immigrants per year who start a business in the US, employ Americans, and invest or raise capital in the US.  This entrepreneur visa would provide another pathway to permanent residence and eventually to citizenship.

This is a step in the right direction; however, it isn’t enough by itself, and it’s muddled by inclusions that, while important in their own right, have nothing to do with immigration.

It isn’t enough because it only addresses one narrow aspect of one part of a three-part immigration problem.  I wrote earlier about those three parts; some of that is quoted here for convenience:

Most modern Conservatives agree that our borders need to be secured, including against illegal immigration.  This need is based on…the right of any nation—the right of any society in their social compact—to determine for themselves who they will allow into their nation: no foreign entity has an inherent right to enter another nation without that nation’s permission….

There are two additional aspects to immigration, and if these are not also solved, the immigration matter will continue to be a serious risk to our national security.  These two aspects are what to do about the population of illegal aliens currently present in the United States, and what to do about legal entry for immigrants into our country.

[W]e need to remove the impediments to legal immigration, we need to eliminate the quotas that put an upper bound on the number of talented who want to work here, on the number of foreign-born who are educated in our Universities and want to stay past their college days. … It simply shouldn’t be that hard to enter the United States legally.  There should be border crossing stations every mile along our border….

These visas are, as I said, a step in the right direction, but the idea falls short on two fronts: it adds to the breadth and complexity of the visa bureaucracy without addressing the overall problem of legal entry for all immigrants, and it doesn’t address at all the other two aspects of our immigration problem.

The muddle consists of tax and regulation clauses that the Senators consider politically necessary to get the bill passed—or at least publicly debated in Senator Harry Reid’s (D, NV) Senate.  Among these extraneous items are:

  • a tax credit intended to encourage start-ups to engage in R&D,
  • a tax exemption that would eliminate capital gains taxes on investments in start-ups held for at least five years, and
  • a requirement that any new regulation with an impact of $100 million or more be subject to a cost-benefit analysis prior to approval.

These are important in their own right, and the need to include these things, which are irrelevant to an immigration bill, in an immigration bill is a testament to the partisan, obstructionist nature of the Democrats’ hold on the Senate.

The tax questions are better handled in a tax reform bill that moves to a flat tax and maintains that flatness by eliminating subsidies of all types.  The isolated regulation item is better handled in a separate regulatory reform bill that eliminates most of the existing regulations (much of which are mutually conflicting, much more of which are obsolete) and that returns regulation generation to the Congress as the most direct means of forcing that body actively to satisfy in its regulatory oversight responsibility.

The Senators’ immigration bill is well worth supporting, but only if it’s made clear that this is only an opening salvo in the struggle seriously to reform our immigration process.