On immigration I’ve long been in the President’s camp in the mushy middle, looking to use the countervailing pressures for enforcement and “legalization” to cobble together support for a comprehensive bill that deals with both. More recently, though, I am – reluctantly – beginning to drift into the camp that thinks that the recently passed Senate bill is so bad that we’d be better off just getting an enforcement-only bill now and deal with the rest later.
As we stand at this pass, though, with the legislative process still fluid (House GOP stalwart Mike Pence is promoting an alternative of his own to the House and Senate bills), it’s still worth considering the merits of “legalization” – i.e., the process of allowing illegal immigrants to become legal residents and, ultimately, American citizens. And that means confronting the question of amnesty – what it is, what it isn’t, why you would consider any sort of amnesty, and under what circumstances.
First of all, when you speak of amnesty, you need to remember that you may be talking about two different things, because there are two different types of amnesties. Under one view, an amnesty means that an individual has no liability or penalty whatsoever for a prior crime – the same as a pardon. This is what I would call “Complete Amnesty.” Under another view, an amnesty is any mass reduction in the prescribed penalty for a violation – what I would call a “Partial Amnesty.” The distinction can be a significant one, and given the bad reputation of amnesty in the immigration arena, the distinction is often blurred both by politicians eager to explain that they are not supporting anything that could be called an amnesty when in fact they are supporting a Partial Amnesty, and by critics who accuse supporters of Partial Amnesty of supporting amnesty, without clarifying that they are not talking about a Complete Amnesty.
It is a misconception to suggest that amnesty is somehow unheard-of outside of the immigration laws. In general, there are three main reasons why governments may rationally choose to offer an amnesty for violators of some particular type of law.
1. To Correct an Injustice. If a law is unjust, and society has recognized that injustice by repealing the law, it often makes sense to wipe clean the records of those who were unjustly convicted; the classic examples of this are releases of political prisoners after a change in regime or, in the U.S. context, the amnesty for violators of the Alien and Sedition Acts by the Jefferson Administration.
Granted, there are a few groups around the fringes who would argue that laws against illegal immigration are unjust: hard-core open-borders libertarians who object to any restriction on the free movement of people and “reconquista” Leftists who argue that parts of the United States are the rightful property of Mexico. And some liberals, by making emotional appeals regarding the harshness of deporting hardworking immigrants or breaking up immigrant families, implicitly argue that the consequences of actually enforcing our immigration laws are too cruel to face. But the first two are not reasonable, mainstream positions, and the third isn’t even an argument, just a collection of anecdotal sob stories. Most Americans would agree that we need to have some sort of laws regulating who can enter the country legally, and that necessarily implies the ability to punish and/or remove the people who enter illegally.
A variation on the idea that the law itself is unjust is the notion that an otherwise just law has been applied unjustly – for example, I believe that some of the arrests and prosecutions of protestors against segregation were under laws prohibiting trespassing, breach of the peace and similar offenses. Nobody would argue that trespassing laws are unjust in themselves, but clearly they are unjustly applied when the purpose is to enforce segregation. Jimmy Carter’s rationale for amnesty for Vietnam-era draft dodgers (a whole ‘nother can of worms in itself) was, at bottom, based on a similar theory: not that the draft was unjust but that its use to send people to Vietnam was unjust.
Now, there are fair arguments that the current system for legal immigration is so broken and dilatory that the difficulty of navigating it is a mitigating factor in the decision to come here illegally, especially for people who are very poor and willing and able to work when they get here. But the fact is, people from countries poorer than Mexico line up at consulates the world over to try to come to America legally; it would be unfair to the people who play by the rules to grant too easy a path to those who disregarded them.
Finally, there is the argument that America’s lax enforcement of the border has conveyed a wink-and-a-nod message to prospective illegal immigrants, especially those who crossed the border on foot or by truck from Mexico, that we would look the other way; some would argue that it is unfair to take away the lives they built here in reliance on this state of affairs. I’m sympathetic to the situation of illegal immigrants who have made a home, family and career here, but this argument ignores some basic facts: first, that it’s always been clear and well-known that illegal immigration was, in fact, illegal, and those who have prospered here have had to repeatedly and consciously evade and in some cases deceive the long arm of the law to do so; second, even as lax as enforcement has been, people are still arrested and deported by the thousands every day in this country; and third, deporting illegal immigrants isn’t so much a punishment as a restoration of the status quo – the fact that we didn’t enforce the law in the past is no reason to expect it won’t be enforced prospectively, and long-time illegal residents are still illegal.
2. To Remove A Source of Social Tension. A second reason why amnesties are sometimes granted has nothing to do with justice, and everything to do with peace: sometimes, a society simply finds it easier to look the other way at certain past crimes than bring everyone guilty to justice. Countries like Chile and South Africa (and, less formally, East Germany) have taken this route at least to some extent after a change away from a repressive government, concluding that too many people were complicit to prosecute them all without expending massive resources on a backward-looking process and undergoing the wrenching process of tossing huge numbers of people in prison.
Certainly, fear of social disruption is why nearly all of even the most aggressive opponents of illegal immigration blanch at the notion of mass deportations of millions of people (including whole families and long-term residents), despite the fact that we have the perfect legal right to do just that. (The preferred solution is generally an ‘attrition’ strategy of gradually drying up the opportunities for illegal employment)
But we have had millions of illegal immigrants in this country for years without massive social unrest; if we simply continue the status quo or replace it with moderately more vigilant interior enforcement, that is unlikely to rend the fabric of American society. Thus, a “path to citizenship” isn’t needed for that purpose.
3. To Bring People or Activities Out of the Shadows. One of the most common types of amnesties is tax amnesty; go here, for example, for an explanation of how a recent tax amnesty in California operated. Tax amnesty isn’t about justice – nobody is seriously arguing that tax evaders had a legitimate excuse to avoid oppressive taxes that the rest of us paid. Nor is it about social peace – it would be difficult, yes, to lock up everyone who underestimates or avoids paying taxes, but the Republic would survive. No, the main reason why tax amnesty is regularly pursued by state governments is to make money. Governments understand that a lot of activity takes place off the books, and that giving people an incentive to report that activity and pay taxes on it is worth the cost to deterrence of allowing people to pay those taxes with little or no penalty. Part of the theory is also that people who have taken advantage of an amnesty in the past will no longer be afraid, in the future, to report income for fear of being investigated over their prior years.
Much of the theory of providing a legalization/”path to citizenship” process is similar – not a sense that illegal immigrants necessarily deserve to be rewarded for illegal activity or even that we need to allow them to become legal residents or citizens, but that bringing a big chunk of that population out of the shadows, where they pay little or no taxes, fear cooperating with the police, are beyond the reach of laws governing the workplace, etc., will be an overall benefit to society and government in the long run.
Is this worth it? That’s an empirical question, but the first thing that needs to be asked is what society is getting in return. Absolutely non-negotiable, in my view, is that anybody seeking legalization must pay all back taxes of any sort, including Social Security and other withholdings, and that any doubts presented by the scanty documentation many workers have should be resolved against the applicant for citizenship (perhaps by establishing a minimum level of presumed income). That is the bare minimum for tax amnesty, and it should be no less for prospective citizens who seek amnesty both for unpaid taxes and for being here illegally. (Also, requiring full payment of all back taxes reduces the incentive to exaggerate how long you have been here, since a longer term of residence means more tax liability).
Of course, to some people, any sort of amnesty in the immigration area is out of the question, period. Partial amnesty treats citizenship as a thing of value: if you are willing to pay enough (not just in money but in other efforts such as learning English), you can have it. If you view illegal entry fundamentally not as a debt, a forgivable sin or a crime for which society can choose at its discretion to negotiate or remove the penalty but as a stain that can never be washed away, then you’re not going to go for anything that looks like an amnesty. But if you accept the possibility that amnesty can have positive practical consequences, then it’s worth putting aside those objections and focusing on the practical pros and cons.
That said, the practical objections to many of the plans that have been mooted about are considerable. The main line of argument goes like this:
1. A record of past amnesties – like the 1986 fiasco – encourage more people to come here illegally hoping and expecting future amnesties.
2. That’s not a problem if we can radically improve border enforcement, but (a) it’s not clear we can ever do that, (b) we should try out enhanced enforcement first and see how it works, and/or (c) unless we hold the legalization process in limbo, there won’t be an incentive for the political class, which tends to be lax on this issue, to get serious about enforcement.
These aren’t unreasonable objections, but as to #1, at least, I continue to believe that the best check against the vicious cycle of repeated demands for amnesty is, paradoxically, to create a legalization process – rather than have one-time amnesties, set in place a permanent process by which future illegal immigrants can become legal residents. Any process that is too lenient to set up as a permanent, ongoing process is too lenient to do as a one-shot deal, precisely because there will always be future demands for more one-shot deals.
A final thought along those lines; I’m not an expert on the ins and outs of all the pending bills. But the idea that we should treat citizenship as a thing of value that could be sold is one thing; the idea that we should sell it for $1,000 is ludicrous. A New York City taxi medallion sells for many multiples of that, and certainly many immigrants manage to at least rent one. We haven’t seen an economy car retail for under $4,000 since the Yugo, and if the Yugo isn’t the symbol of a devalued birthright, I don’t know what is. The fact is, if we are letting illegal aliens buy their way into citizenship mainly on the theory that they will become sufficiently productive members of society to be worth looking the other way at how they got here, we should treat that citizenship as a valuable asset, not a discount appliance.