Two of the candidates for the 2012 Republican presidential nomination—Newt Gingrich and Rick Perry (the latter later withdrew from contention)—advocated measures quickly denounced by other conservatives as forms of “amnesty” for illegal immigrants. Neither proposal was spelled out in any detail, and they are no longer receiving any attention at all.
The problem of illegal immigration to the United States remains unsolved. There are some 11 million illegal immigrants, mostly Mexicans, in the United States. The number stabilized for a time after the economic crisis that began in 2008 reduced job opportunities in the U.S., but as the economy improves and violence in Mexico increases, we can expect the number to start growing again. It is neither feasible to deport any substantial fraction of the 11 million—we cannot at present (or in the foreseeable future) afford the necessary enforcement machinery, or the disruption of the economy that would be caused by withdrawing millions of productive workers (they would take a long time to replace)—nor possible to close the border with Mexico (because of the huge amount of lawful crossing of our border with that country) so that no (or very few) Mexicans can immigrate illegally. We are stuck with the 11 million, or something very close to that number. It is almost 4 percent of the population of the United States.
One can imagine measures, short of mass deportation (the official name for “deportation” is now “removal,” but I will continue using the older and more familiar term), that would both limit illegal immigration and speed voluntary departure. One would be to make it a crime to be an illegal immigrant. Although an illegal immigrant is a law violator, he is not (except in a few situations, mainly if he has been deported previously and then returned to the United States without authorization) a criminal. He is subject to being deported but not to being imprisoned and then deported. If it were a crime to be an illegal immigrant, this would operate as a significant deterrent, especially if, as in the case of most federal crimes, the punishment were severe. Another effective though costly measure would be to detain anyone found to be an illegal immigrant, pending his deportation. The current practice, unless the immigrant is a criminal, is to order him to depart, and if he doesn’t obey the order there is rarely effective follow up; if he keeps a low profile, he probably will never actually be forced to leave the country. Still another effective measure, though it might require a constitutional amendment, would be to deny U.S. citizenship to illegal immigrants’ children even though they had been born in this country. And still another measure would be to repeal the law that allows immigrants who have been ordered deported to apply for cancellation of the order on grounds of hardship to their family; this suggestion is related to the immediately preceding suggestion because the family may include U.S.-citizen children who will remain in the U.S. when the illegal immigrant is deported, thus breaking up the family.
I would not myself recommend measures such as these, because I do not think that the presence of millions of illegal immigrants is a problem serious enough to warrant enhanced enforcement measures, which would undoubtedly be costly. Illegal immigrants are not a net burden on the economy. They have some entitlements, notably to Medicaid, but far fewer than citizens and lawful permanent residents. They pay taxes, by and large. They are hard workers (Californians who want to criticize someone for working too hard say “he works like a Mexican”), productively employed, many in jobs that American citizens don’t want. It is true that there is a significant criminal element among illegal immigrants, mainly because Spanish speakers have a comparative advantage in the illegal drug trade, but the Administration is rightly focusing its enforcement efforts on them. It has not been shown that illegal immigrants are “taking” jobs from Americans, for many of the jobs they do, particularly in agriculture and domestic service, are unattractive to Americans. And of course illegal immigrants, like all residents, generate jobs by spending their income on consumer goods and services, thus creating demand for workers to provide those goods and services. When one considers the enforcement costs and disruptive economic consequences of deporting large numbers of illegal immigrants, the net benefits of such deportations, other than of criminals, seem negative.
The question then is whether, if we are and should continue (or maybe have no feasible alternative to continuing) to tolerate the presence of millions of illegal immigrants in our midst, some form of amnesty would create net benefits for the society. The simplest amnesty law would be a federal statute authorizing illegal immigrants who had been in this country for say five years before the statute was enacted (to avoid a flood of illegal immigrants drawn by anticipation of the statute’s enactment) to apply for lawful permanent residence, which is the first step to obtaining citizenship. The application would be granted if the applicant had proved himself to be a productive member of American society who had developed substantial ties to this nation and was honest and did not have a criminal record, or if the applicant was a spouse, minor son, or daughter of such a person. The statute would sunset after one year.
This would be amnesty, and would encounter the usual objection to amnesty: it encourages violations of law, in this case in the form of illegal immigration by persons who anticipate a future amnesty. That expectation would reduce the expected cost of illegal immigration. But perhaps not by much. The last, and as far as I know also the first, amnesty for illegal immigrants was the Immigration and Control Reform Act (also known as the Simpson-Mazzoli Act, after its sponsors), enacted in 1986. That is more than a quarter of a century ago, and how many foreigners would decide to immigrate illegally to the United States in the hope that a quarter century later there would be another amnesty? Moreover, such slight effect in encouraging illegal immigration as an amnesty would create could probably be offset just by making illegal immigration a crime rather than, as I noted that it is at present, merely a civil offense with the only penalty deportation.
The biggest obstacles to amnesty for illegal immigrants are twofold. The first is political and is the recent surge of hostility toward them, which is puzzling but may be linked to the economic crisis that began in 2008 and is persisting, albeit lessening at last (almost three a half years after the crisis began with the financial collapse of September 2008). The government and the media have done a poor job of explaining the economics of the crisis to the average person, and as a result misconceptions abound, and one is that our economic woes are attributable to a significant extent to illegal immigrants who take jobs away from Americans and grow fat on “safety net” programs, thereby exacerbating the federal budget deficit.
The second obstacle is the perceived failure of the 1986 amnesty. The basic condition of eligibility was continuous residence in the United States since 1982. Some three million illegal immigrants were eligible, and about that number of illegal immigrants obtained amnesty—but apparently fraud in applications was rampant, so that many of the amnestied had been here for a shorter time or were otherwise ineligible. And just as I suggested above, the amnesty was coupled with measures to discourage further illegal immigration—and these failed utterly to stem the tide.
The prospects for a new amnesty are therefore bleak, though I believe we could learn from the failures of the 1986 law and design an amnesty program that would, if not solve, at least measurably alleviate, the problems created by illegal immigration.