Legal Commentary

What (If Anything) to Do About Illegal Immigration--Posner's Comment

By Richard Posner

There are four basic alternatives for dealing with illegal immigration: do nothing; do nothing about the illegal immigrants who are already in the United States but take measures to stop future illegal immigration; amnesty the existing illegals; deport them.

The first three alternatives are plausible; the last is not. The United States does not have enough police and other paramilitary personnel, or sufficient detention facilities, to round up and deport 12 million persons (our prisons and jails are bursting with 2 million inmates), and even if it did, the shock to the economy would be profound, as the vast majority of the illegal immigrants are employed. The mass deportation would create a serious labor shortage, resulting in skyrocketing wages and prices.

The first alternative, which is to do nothing, has a number of attractions, though doing nothing in response to a perceived problem is not in the American grain; fatalism is alien to American culture. Most illegal immigrants are hard-working, many will return to their country of origin after accumulating some savings (but be replaced by others), most do pay taxes but do not receive social security and other benefits, they are less prone to commit crimes than the average American (the reason is that if convicted of a crime they would be deported after serving their prison term), and they consume less health care than the average citizen or lawful resident. Their children attend public schools, which increases the costs to taxpayers, but the parents compensate by working hard for wages that may be depressed because of an illegal worker's precarious status, paying taxes, and receiving few other public benefits besides a free public education for their kids. The fierce hostility that many conservatives feel toward illegal immigrants appears to be a compound of hostility to unlawful behavior (they are illegal immigrants, after all) and of fear that immigrants from Mexico and Central America will alter American culture, which is still primarily northern European. The fear is similar to what many Americans felt about Irish and southern and eastern European immigration in the nineteenth and early twentieth century. The fear proved to be unfounded.

Concerns with congestion externalities and national security support the second alternative, that of trying to stem further illegal immigration; in particular, there is a strong national security interest in reducing the porousness of our borders, which terrorists might take advantage of. But this alternative is unstable, in the following sense. It is infeasible to build and man, at reasonable cost, a wall or fence that would actually close our border with Mexico; and anyway we cannot literally close it because a great deal of lawful traffic in persons and goods moves back and forth across the U.S.-Mexican border. The only way to block illegal immigration is to require all persons in the United States to carry biometric identification and to impose meaningful penalties on all employers (including household employers) of illegal immigrants, since no longer could an employer plead that he had been fooled by a false I.D. But these measures would be equally effective against existing illegal immigrants, as well as newcomers, so that alternative two would in practice approximate alternative four (expulsion of all illegal immigrants), unless the measures were enforceable only against new immigrants--but how would an employer know whether a new applicant for a job was a recently arrived illegal immigrant or one already living here?

So in practice any measure for closing off future illegal immigration would have to be coupled with an amnesty for the current illegal immigrants. The word "amnesty" is anathema in political debate over immigration, but the concept is inescapable. Illegal immigrants are--illegal. They are not supposed to be in the United States. If we let them stay, on whatever terms, we are forgiving the illegality of their presence. The grantor of the amnesty may demand a quid pro quo, but that does not make it any less an amnesty. A tax amnesty is conditioned on the taxpayer's paying the taxes that he owes. Similarly, an immigration amnesty, which would convert the illegal immigrant's status to that of a lawful resident eligible for eventual citizenship without having to leave the country, could be conditioned on the immigrant's paying a fine and learning English. (Illegal immigrants who had committed crimes should not be eligible.) Of course, the fine must not be set so high, or other conditions of regularizing one's status made so severe (such as requiring the illegal immigrant to return to his country of origin and "stand in line" for a U.S. visa), that most illegal immigrants would decide to remain illegal.

It is true that some amnesties come without conditions, such as President Carter's 1977 unconditional amnesty for Vietnam War draft dodgers. Opposition to an amnesty for illegal immigrants may be colored by a failure to distinguish between conditional and unconditional amnesties. The distinction is important. The conditional amnesty that I am proposing is functionally the equivalent of Becker's proposal to sell to illegal immigrants the right to become lawful residents.

The objections to an immigration amnesty, even in its conditional form, are threefold. First, it rewards illegal behavior. But that is something done all the time without controversy. A criminal who agrees to rat on an accomplice may be given a break in sentencing; that is the equivalent of rewarding an illegal immigrant for coming forward and paying a fine to regularize his status. Second, it is argued that an amnesty would create an expectation of a future amnesty and thus encourage further illegal immigration. But the argument just shows that the amnesty would have to be coupled with efforts, which as I have explained are feasible, to prevent further illegal immigration. Third, it is argued that an amnesty would be unfair to those foreigners patiently waiting in line for permission to immigrate legally to the United States. But why the United States should care about these people is obscure. They are not Americans; we do not owe them anything. If an amnesty solves our problems, the fact that it is in some global sense "unfair" to another set of foreigners deserves, in my opinion, no consideration.

Full post as published by Becker-Posner Blog on February 03, 2008 (boomark / email).