Earlier this year, the Biden administration issued a “Fact Sheet” on his proposed US Citizenship Act, a comprehensive plan to expand pathways to citizenship and otherwise modernize and liberalize this nation’s immigration system. It is very difficult to draw categorical conclusions about the many facets of immigration law. The passion on both sides of this issue suggests that finding a sensible middle position may be impossible. Even so, a measured and compromising approach is the best way forward on immigration reform, with its complex highways and byways.
One way to think about immigration reform is to compare the case for free and open immigration with the parallel case for free trade. Fierce opposition to free trade in part propelled Donald Trump to his 2016 presidential victory. Free trade did not take a central role in the 2020 election, in large part because candidate Biden offered a similar sentiment to bolster trade union support. This was not merely campaign talk. President Biden recently issued a protective “Buy American” statement, the objective of which is “to support manufacturers, businesses, and workers to ensure that our future is made in all of America by all of America’s workers.” A Biden executive order from January seeks to “use terms and conditions of federal financial assistance awards and federal procurements to maximize the use of goods, products, and materials produced in, and services offered in, the United States.”
But the effort to turn the United States inward on matters of economic activity will force superior foreign products to be substituted with inferior domestic ones, making domestic production less efficient. These inefficiencies will have far-reaching consequences: raising prices and lowering wages across the board, weakening American exports, and inducing other nations to take retaliatory measures, which will further contract world trade. Hopefully, the world economy can avoid a repeat of the implosion of international trade that followed the passage of the 1930 Smoot-Hawley tariff. But the political risk still remains.
Face the Challenges
The issue of free immigration is vastly more complex than the problem of free trade. As a general matter, no one thinks that the United States and other nations lack the power to exclude foreign individuals from entering and residing in their countries. But, as with free trade, there is a fierce debate over how that power to exclude should be exercised, leading to a series of difficult and hotly contended questions. Do we reunite families, when some members are abroad and others are in the United States? Do we allow entry into the United States for political refugees who have suffered under oppressive regimes? Do we reserve spots for individuals who bring special skills and talents to the United States? Do we make special allowances for “dreamers” who came illegally into the United States at a young age and have nowhere else to call home?
In all these cases, it is possible to offer a sympathetic justification for expanding the number of immigrants allowed to enter the United States. Indeed, American policy on immigration since the 1960s has become increasingly liberalized on exactly such grounds. Thus the percentage of foreign-born individuals in the United States has nearly tripled from about 4.8 percent in 1970 to 13.7 percent in 2018. The basic policy that lets individuals into the country is complemented by a back-end system of deportation of individuals who have entered under false pretenses, have given material support to terrorist actions in their own country, or who have committed serious crimes after their arrival to the United States.
Beyond the serious administrative difficulties of the current immigration system, it may be harder to support free immigration than free trade. Free trade is largely an economic story, with massive efficiency gains that can be spread broadly to offset much of the displacement it generates. Immigration, on the other hand, brings new persons into the United States, the presence of whom change the face of the nation. Claims of excessive criminal conduct by immigrant populations, especially those intemperately made by Trump during his successful run for the presidency in 2016, are surely mistaken. Nonetheless, immigration poses heavy challenges in the areas of education, health care, and housing. The political composition of cities and states can change with a rise in immigrant power.
Often, these issues are dealt with by sensible policies that help immigrants integrate into the economic system, learn English, and participate more fully in society. Indeed, as the immigration debate rises to a fever pitch, Ilya Somin of the Scalia Law School at George Mason University has written a powerful book, Free to Move. Somin, against the grain, urges the United States to adopt an open-border policy on immigration, noting the enormous gains for immigrants who reach our shores and the major contributions immigrant populations have made toward overall welfare in the United States.
Somin’s arguments help to strengthen the case for maintaining current levels of immigration and point towards some further liberalization of the system, starting with dreamers, who have already integrated themselves into American society. Nonetheless, I am uneasy about the more extreme position, which may be called open or free immigration. Even the mass immigration into the United States from 1890 to 1914 was not entirely free and required the resolution of hard policy problems.
For instance, immigrants had to be free of contagious diseases––and if these could not be eliminated during quarantine, shipping companies were obliged to return immigrants to their country of origin. That system, moreover, worked as well as it did in part because the private costs of immigration were sufficiently high. High costs operated as a sorting mechanism that tended to bring fitter and more self-reliant individuals to our shores. At the same time, the absorption of immigrants into society was made easier by the far smaller state and federal welfare operations of the time. This reduced the public costs of admitting new residents, and left the task of supporting and integrating newly arrived individuals to successful private organizations like the Hebrew Immigrant Aid Society (HIAS), founded in 1881.
Open immigration under current conditions would bring great uncertainty. Could the United States absorb several million Central American immigrants coming across the border through Mexico, especially if their arrival generated political unrest or brought risks of disease? Could an organized effort by third-party entrepreneurs to ferry thousands of impoverished individuals from Africa or Asia to our shores place burdens on this nation that it could not withstand? Would the same rules for deportation apply to such populations that are imposed today?
It is hard to deal with such issues by experimentation once an open immigration program is implemented, and easy to predict the massive backlash that would occur if post hoc restrictions were implemented legislatively. It seems better, then, to adopt safer policies that have a better chance of leading to a measured expansion of immigration populations while offering humanitarian aid to regions in or near crisis.
Truthful Distinctions Matter
Candidly confronting illegal immigration is a necessary component of these delicate midcourse corrections. Some sanctions have to be imposed on illegal aliens if a system of legal immigration is to be maintained. In this regard it is instructive to note the recent trend to undermine the distinction between legal and illegal immigration for the sake of generating a more tolerant attitude towards illegal aliens. Take, for instance, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,passed during the Clinton administration, which deployed the term undocumented immigrants in place of illegal aliens. That verbal substitution creates the linguistic possibility that people could be both undocumented and legal, even though a legal illegal alien is an oxymoron.
More recently, both the Biden administration and liberal Supreme Court justices have preferred the term noncitizen, which covers a range of persons, including those who have never had or desired contact with the United States. The term leads to such linguistic oddities as permanent noncitizen. It is now commonly asserted that the term illegal alien is “disparaging,” “derogatory,” or “dehumanizing,” and that a change from “alien” to “noncitizen” offers a way “to recognize the humanity of non-Americans,” as urged by a long-time immigration law expert, Professor Kevin R. Johnson.
Unfortunately, these exaggerated claims undermine the very policies that could help expand legal immigration. Immigration policy requires many difficult judgments on the proper relationship between citizens and legal and illegal aliens. Truthful statements about illegal conduct should not be regarded as wholesale condemnation of any individual. Deliberate obfuscation will not move immigration reform forward for either the proponents or the opponents of expanded immigration. d