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

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.

Comments

[Chris]

The first step in solving the problem with illegal immigration is to stop giving incentives for illegals to stay in our country. But, some people want to go as far as provided subsidized college education to illegal immigrants. If we do this, it will provide another huge incentive to break into our country. I found a petition which is trying to stop this atrocity, and, as we get more signatures, donations are made to help the border patrol in their tasks.
http://petitionearth.com/viewpetition.php?id=63
Please, sign this and keep staying active in this important battle!

[Howard Foster]

Dear Judge Posner: I am usually an admirer of your proposed solutions to our public policy problems. But in the case of illegal immigration, I find myself wondering why you refuse to allow market forces to operate. While it is true that the DHS cannot deport the 12 million illegals, we need not accept their long-term presence. As with antitrust, Congress has enacted a private right of action against employers of illegals (under RICO). I have brought several class actions on behalf of citizens against employers for wage depression. Why do you not welcome such cases as you have in certain areas of legitimate per se antitrust violations?
Secondly, the government can, as you state, seriously enforce immigration law by issuing biometric tamperproof cards to all persons eligible for employment in the US and require employers to use the free matching system when hiring. I fail to see why this will not result in the voluntary departure of millions of illegals. Employmet is the magnet that brings them here. Why would they stay without it?

Third, the government can get serious about workplace enforcement, and prosecute more employers who knowingly hire illegals.

When the combination of these factors is in effect, enforcement by attrition will solve the problem and end the attraction of illegal migration to the U.S.

Sincerely,
Howard Foster
Chicago
(truly, an admirer of yours, end your son Eric)

[Milton Smith]

"Self-Deportation" through enforcement of current US Law. It works where it's tried!!!

[v]

Since many would argue that the set of illegal aliens in this country are also another set of foreigners to whom the statement "They are not Americans; we do not owe them anything" applies, I fail to see how Judge Posner can logically argue that we should feel differently about those who actively queue-jumped (not to mention did not satisfy any sort of education requirements like many others) when compared to those who patiently waited in line to come here...

Anyway, I do not see understanding from Posner of why previous attempts at exactly what he proposes failed. The Simpson-Mazzoli bill in 1986 attempted something very similar and did not work because of the vested interests against any real enforcement system. Given that reality, why would the American public accept a fantasy tradeoff like the one proposed? Unrestricted immigration of large numbers of desperate people is unlike any immigration system in the industrialized world and given the evidence of its depressing wages at the bottom of society, I think the burden of proof is on the immigration advocates to show why we need more...

[George Weinbaum]

Are you guys serious? I opposed Simpson-Mazzolli in 1986 concluding it would just set us up for another amnesty. What do you mean we can't deport 12 million people? Of course we can. It might take five years, so what? Their cost to the economy is tremendous. Do a little DCF analysis, I'm sure the IRR will run over 60%! Looks good to me.
I lived in Los Angeles, Alta California, from 1985 to 2004. It's no longer part of the US. Study a little history and develop a little humility. You are setting this country up for a civil war. It's that bad. We have an irredentist movement, La Raza. Maybe you're unaware of it? Or you anticipate Larry Summers' problem and lack the guts to say the obvious: we are importing problems. What do you think the effect is of importing a group of poor illiterates with an average IQ of about 82? Or maybe you don't think there is any? Look at California's $14 billion budget deficit. Look at hospitals closing. Look at schools with 110 languages spoken by the students. Look at Bush's crazy NCLB law. Wow!
While I agree with 90+% of what you say and have read 12 of your books, and many of your published cases, I disagree vehemently with you here. The Mexican War is being refought every day down here in the Southwest. The Mexican government makes no bones about its claims to the Southwest. Dismiss them as rhetoric if you wish. I don't. If it makes you feel better, call me racist. See if I care. I don't.
I think part of your problem arises from not accepting the nature of law. I refer you to an article you once described as the finest law review article ever written, 10 Harvard Law Review 457, Holmes, "The Path of the Law", (1897). Our illegal immigrants are NOT properly understood as law breakers but advance men for an invading army. You have been "in the law" too long. These are not Holmesian "bad men", but invaders and should be so dealt with. I believe it was Washington who said, "millions for defense and not a cent for tribute". Why are we paying illegal aliens tribute? Crazy. This is not a legal issue in my judgment, but a military one. It's like the war on terror. Bring Osama to justice? Why? It's war. Mao Zedong said, "political power grows out of the barrel of a gun". Without the use of guns, there is no law. What do police carry? What do federal marshals carry? You are too squeamish.
MBA (Chicago) '74.

[robert]

The issue of illegal immigration is a cosequence, not a cause. The cause is the
inability of the Mexcan government to
create a stable middle class that would choose to stay rather than flee to the North. Instead, Mexico profits--literally and figuratively--by having millions of its citizens in the United States. This occurs in essentially two ways: by remittances of billions of dollars from illegal workers in the North which are sent back home; and by "exporting" an entire group of individuals who, if they stayed, might foment enough political and economic instability so as to challenge the status quo.

[Bob]

I believe that Judge Posner is mistaken. I do not believe most illegal immigrants pay payroll taxes. This gives them an unfair cost advantage over citizens. I would not worry if immigrants had to pay all the taxes citizens do. With the current tax system there is no way to make that happen.

I suggest that the size of the underground labor market is directly related to the high costs of payroll taxes: withholding, employer matching, and, increasingly, compliance. Zoe Baird had her nomination for attorney general derailed because she did not pay payroll taxes for her domestic help. It was cheaper and easier to wait to be caught, and then pay back taxes, interest, and penalties. She didn't anticipate the political problems.

I suggest that California has a bigger problem with illegal immigration than Texas because California taxes income and Texas does not. An illegal immigrant in Texas has to pay state sales taxes. He still has an advantage in not paying federal payroll taxes.

I see no point in legalizing current illegals by whatever method when the incentives to come here to work in the underground labor market still exist. I think that likely efforts to eliminate that market, such as the proposed Employment Verification Database would be worse than useless.

[bt]

"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." ...............

I believe that this would only encourage illegal immigration at the expense of legal immigration. Where I live the state troopers have an amnesty on the speed limit. No citations are issued within 5 mph of the speed limit. Though the speed limit is 60, a person can in reality drive up to 65 without a ticket. So what do people do? They drive 65 mph, break the law, but enjoy an amnesty. Let's not reward illegal immigration. Illegal immigration is bad; legal immigration is good.

[RPFN]

"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."

Solution: speed up the line.

[Bertil Hatt]

“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.”

What was it? “Bring us your poor, your tired, your huddled [...]” Or maybe somehting about a Rawlsian judge. Can't remember.

Talking about that: could we have the Statue of Liberty back? Thank you?

[P.W.]

Nice post, but the last point ("They are not Americans; we do not owe them anything.") might be oversimplifying things. For legal American immigrants who are waiting for family members to be allowed in, amnesty for illegals might delegitimize the whole process. It could lead to diminished faith in the government in general, or may encourage more elaborate illegal entry strategies.

[JB]

The judge has lost his judgement !!!!
Arent you supposed to be the fair, the righteous judges of people's actions?.
The last point ("They are not Americans; we do not owe them anything.") ... was amazingly callous

[WS]

"They are not Americans; we do not owe them anything".

I am sorry to hear that you are a judge. Become an legal immigrant for a minute and say that.

[Rahul]

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.

What? Don't forget that the potential legal immigrants also include employment-based immigrants who have been here legally on work visa since late 1990s and paying taxes. These hard-working legally here folks are as American as ever.

You are a self-righteous pig to say "America does not owe them anything!"

[Horace]

"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."

The same callous statement that "They are not Americans;...." may be applied to the illegal alien as well. We owe these people nothing except an invitation to repatriate themselves and a lesson in the meaning of words sovereign borders.

The risk of promoting futher illegal immigration by granting another amnesty is too high. One definition of insanity is to repeat the same failed policies over and over again with expectations of success. The amnesties of the past have proven to be failures, so why should we expect success with another? You guys are right, this is another case of a once good judge becoming a victim of Alzheimers.

[Atul]

It seems Judge Posner has the same ignorance as most other citizens - that foreigners waiting "in the line" for legal permanent residency are all outside the country.

The fact is that more than a million foreigners are legally in the country on temporary H-1 and H-4 visas have been waiting "in the line" for permanent residency for upto 10 years.

It will be total travesty of justice if those who who entered the country after getting a visa from the US Consulate have to keep waiting, while those who jumped the border in the middle of the night get permanent residency.

[blake]

"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."
I agree with Posner, but honestly, i'm unconvinced by the whole concept of fairness trumping overall good, even if those people were American citizens, being "fair" to them seems less of a concern to me than legislating for the greater overall socioeconomic good. Prisoner rehabilitation programs often run into this issue, taxpayer dollars going to rehabilitate prisoners is in some sense unfair, as law abiding citizens have to foot their own bill, but the overall economic benefits from turning a sizable percentage of criminals into taxpayers seems to me to trump issues of fairness. Similarly, if "unfairness" is weighed against the cost of hunting down and deporting 12 million working men and women in America, then the cost of being unfair would have to be REALLY high, and i don't see as it is.

[blake]

Actually, at the risk of being badly off topic, what do you think of the idea of evading the issues with fairness that criminal rehabilitation programs run into, by having a privatized prison system that accepts an upfront payment from the state for the estimated lifetime costs of incarceration(calculated in sort of the same way insurance is calculated now, and allowing for some profit to the investors.) Then the company could engage in rehabilitation programs(possibly incentivized by a cut of future tax earnings from that individual) that would take the innate unfairness out of the government's hands, while allowing the prison running company adept at rehabilitating prisoners into as functioning as possible taxpayers to reap windfall profits.
i hope that was coherent enough, it seems a high stakes win/win to me.

[Anonymous]

"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."

Wow! You are insane!

If you truly believe what you wrote, refund all the taxes that the legals have been paying into the system for years.

Reward illegal behavior and punish law abiding residents. Is that your answer? I can see the direction that the country is headed in, if lawmakers continue to follow your brand of "logic".

[Hans Bader]

The above post understates the fairness problems of amnestying illegal aliens when it writes,

"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."

But some of those foreigners "patiently waiting in line" are closely tied to Americans, and their fortunes are inextricably intertwined with Americans.

My wife, for one. She worked in the U.S. as a legal alien for an embassy that paid her $14,000 per year, since she didn't have a green card that would allow her to work legally for any other kind of employer (you don't need a green card to work for an embassy).

She could have made far more money as an illegal alien doing translations or other work in the cash economy illegally. (The average illegal alien household in Metropolitan Washington, D.C. makes over $60,000 per year).

But instead, she patiently waited in line, at a great financial cost.

Only after she married me (and then waited months for the immigration authorities to approve her marriage-based green card application) did she finally become a legal resident, and that took a couple years after the marriage (affecting our marital standard of living).

Why should illegal aliens who worked illegally in better-paying jobs get legalized as speedily as my wife, who sacrificed financially to do things the legal way?

Amnesty is sometimes a necessary evil.

But the Ted Kennedy-George Bush amnesty proposal (known as "comprehensive immigration reform"), which charged only $2,000 for a renewable Z-visa which would allow illegal aliens to stay in the country indefinitely (when the economic value of a permanent residency is at least $100,000) was a foolish giveaway, not just an amnesty.

A hardheaded realist would not approve of the amnesty contained in that "comprehensive immigration reform" proposal, which sold the right to remain in the U.S. far too cheaply (more cheaply than it is obtained legally by many legal immigrants -- the administrative fee for getting a green card is over $1,000, and other fees as well must be paid prior to that to get it).

[Jack]

George W. A very large chunk of CA's DEBT came from very bright MBA's of the 70's cohort craftily giving CA a pretty vigorous screwing on energy. I'd say educating the kids of those doing the work out there pales by comparison.

BTW with an MBA and all, has it occured to you that immigrants enter our work force w/o American taxpayers having invested $120,000 in their K-12 education and that our "own" workers would have kids going to school while they worked?

Lastly, IF you actually want to stem the tide, the choke point IS that of penalizing the employer. Are you ready to do what that entails? Newt thought Repubs were serious about limiting illegals but was cut off at the knees on that issue.

[Jack]

Hans......... Thanks, your real world observations show what a complex problem immigration policy is today. It seems that between fairness to those standing in line, and to other interests such as the traditional American labor force, and a practical and workable solution that their are FEW common denominators.

The current mess gives benefits to some and gores the oxen of others and any "reform" will do much the same. Tough politics!

[Haris]

I've written about a practical and taxpayer-friendly solution to the illegal immigration issue on this blog before, but I'll repeat myself since it's still an issue. I think my proposal is by far the most cost efficient of any one that I've heard so far, and since the federal deficit is 410 billion dollars, I'm gonna say that us taxpayers probably care about this more than any politicking that has beset the immigration issue. Before I start, a few fairly obvious observations:

1. Full disclosure: I am a legal immigrant.

2. Enforcement against employers [checking if they employ illegals] is expensive to the taxpayer, because paying people to check on companies costs money, while employers have huge incentives to hire illegal workers and illegals have huge incentives to immigrate and work for such employers. Basically, the government/taxpayer is fighting against both of those groups.

3. Increased border protection is expensive to the taxpayer. While protecting the border is important for security reasons, half of illegal immigrants simply overstay their tourist visas, which are [and should be] ridiculously easy to obtain. Closing the border would just mean that more people would get and overstay their visas. Closing the border is also ridiculously expensive.

4. An amnesty would encourage further illegal immigration unless coupled with other structural changes. Obviously, letting people break a law and then letting them get away with it is bad policy in the long run. Either the law should be changed, or an amnesty coupled with other changes that discourage the behavior in question.

5. "Biometric" or tamper-proof ID for all aliens don't work. Even if one could create tamper-proof cards, what would stop an illegal immigrant from forging a citizen's documents, which are obviously not tamper-proof [think your license]?

We also know that some people want all illegals deported on moral ['they broke the law'] or cultural ['I don't want to press 1 for English'] grounds. While I don't think the latter is a serious issue, the former should be taken into account. However, it has to be balanced against the inconvenience and cost of deporting 12 million people, and the immediate shock to a few local economies. In my proposal, I think the factors weigh against mass-deportation. That said, Congress should pass a law with the following provisions:

1. Any illegal immigrant in the United States may report before December 31, 2009 [or whatever date] to US authorities. All such persons will be registered, and those found not to have committed any criminal acts will be granted legal immigrant status, subject to an obligation to pay a fine in the amount of $X,000 [a good econ grad student can get a good number here]. All such persons will be eligible for US citizenship, subject to [the same rules as legal immigrants or more severe rules involving longer time of residence – it doesn't really matter to me]. All persons found to have committed a criminal act prior to reporting will be deported.

2. Any illegal immigrant after December 31, 2009 [or whatever date we chose] who can prove that he is employed by a US employer will be entitled to a payment of $X,000 [a high enough number to encourage self-reporting and hurt the employer] from such an employer, and any such person will be granted legal status and eligible for citizenship on the same terms as those under No. 1.

That's it. I realize this is a form of amnesty, despite the fine that is involved. But the adoption of part 2 prevents the amnesty from incentivizing further illegal immigration. While at first glance it would seem to encourage people to come here and work, the fact is that they could no longer find work. No employer would hire an illegal immigrant after the date because it would create such a huge liability for them, and unlike today, the workers would not be complicit in staying hidden – the illegal workers would out themselves! With the incentive to immigrate gone, enforcement costs to the taxpayer go down to practically zero.

Note: While this leaves the burden of determining legality to the employers, we already have that scenario – that's why we punish employers for hiring illegals even if they could not have known better.

[Haris]

I've just been asked this question about my post above, so I'll clarify:
Because employers, starting with the date above, will be on the hook for tens of thousands of dollars per illegal employee, they will fire all illegal employees by the reporting date. As a result, every illegal immigrant has an incentive to report and pay the fine rather than be fired, not report, and find themselves not having reported and unemployable. The incentives are in place to drive every illegal immigrant into the daylight, and for future immigration to be deterred because employers, fearing the payment they have to make, will refuse to employ illegal labor.

[neilehat]

Let's close down the "fuzzy headed" thinking that produces that warm fuzzy feeling that we all so like. The issue is we either control the problem or throw the borders open to every one. There is no other solution. Just remember, a Nation that cannot maintain it's sovereignty has no right to exist as a Nation. This "sovereignty" applies to its laws, it's citizens, its guests, as well as it's borders.

As for Rome, it became soft and weak (much prefering the warm fuzzy feeling) that corrupted it both spiritually and intellectually. As such, it no longer could maintain it's "sovereignty" or the sovereignty of it's borders and as they say, "The rest is history".