Screeds
Thursday, September 02, 2004
Border Power
January 13, 2004
Part One: An Overview
One of your Curmudgeon’s most frequent emissions is that a law must be enforceable—effectively, impartially, and justly—even to have a chance of being constructive. Many of the social problems we have today can be traced to laws passed in the heat of public passion, without adequate consideration of their enforceability.
Of course, a law must also square with the Constitution. But when your Curmudgeon says so, he’s frequently waved aside with a dismissive snort of “that goes without saying,” as if it really did.
Article I, Section 8 gives Congress the power to regulate matters of immigration and naturalization, so there are no Constitutional objections to Washington’s assertion of authority over it. There might be problems if the Fourteenth Amendment were deemed applicable to would-be immigrants, but so far, that gauntlet has been avoided. However, questions of enforceability, which themselves have Fourteenth Amendment implications, will loom large in any discussion of this topic.
Our immigration mess exists principally for two reasons:
- This is a nice place to live and work, especially compared to nearby alternatives,
- It’s easy to get in.
Whether any set of immigration laws, however carefully sculpted, could affect those conditions substantially is open to discussion. One thing seems clear: at this time, mechanisms of sufficient rigor to enforce our current immigration laws do not exist. The proof is in the approximately 8 million illegal immigrants within our borders, whom the authorities can neither certify, nor track, nor expel.
If America has any chance of improving its immigration controls, an immense, unprecedented effort, measured both in manpower and money, must be allocated to them. Our surface borders with Canada and Mexico cannot simply be fenced; they must also be patrolled. Enforcers must be assigned to the pursuit of those who slip through the fences and past the patrols. Our official ports of entry must become the only doors through which anyone can really enter the United States—and the process for letting them in must be entirely impartial, such that no functionary’s discretionary powers can play a part.
Whether Americans would be willing to pay the cost and accept the consequences is unclear. But the requirements are not.
America is a rich nation. If the political will is there to tighten our borders, we’ll find the money, and therefore the men, we need to do it. But as with many other propositions in public policy, the most important word in that formulation is if.
There are several avenues of attack on the political will to control immigration:
- The aforementioned costs.
- Accusations of “racism” and the like.
- Agonies over the differential treatment of “successful” illegal immigrants and would-be immigrants who are turned away at the gates.
- Legal challenges based on the Fourteenth Amendment’s “equal protection” clause.
- State-federal clashes over police cooperation with immigration authorities.
- Retaliatory actions by the governments of Canada and Mexico, and possibly others.
- The economic consequences to American employers and consumers due to the loss of so much cheap labor.
So marshaling that strong a will is by no means certain.
This is not an argument against trying to summon that will. It’s merely a survey of the difficulties involved, each of which must be candidly faced and surmounted.
The borders cannot be made impenetrable; the laws of physics are against it. But there are more ways to deter “wetbacking” than just physically obstructing the border. Increased effort could go to enforcing the laws against hiring illegal immigrants. The penalties for breaking those laws could be made harsher. The illegal immigrant himself could be treated as a domestic criminal, subject first to a jail sentence and then to deportation. If all of these techniques were exploited, we might be able to dam the flood of illegals down to a tolerable trickle. Might; there are no guarantees.
The most important counter-mechanism would be what it has always been: human ingenuity applied to evading the law, powered by economic forces that Congress can do little about. Given enough time to work, that mechanism would bore holes in any “static” scheme of immigration control. It would be necessary to revisit the laws, the enforcement power behind them, and the techniques used both to impose and to evade them at regular intervals, for as long as America remains the preferred destination of emigrants everywhere.
And we have yet to ponder what could be done about those eight million illegals already on these shores.
President Bush has proposed a “guest worker” program that would embrace the millions of illegal workers already in the United States. By holding out the possibility of eventual graduation to official permanent-resident ("green card") status, he hopes to draw a substantial portion of them into the program. But the disincentives are powerful. Several are measured in dollars.
First, many illegals are employed “off the books,” and pay no taxes of any kind. To regularize themselves under a guest worker program would mean accepting a substantial tax burden that they’ve so far managed to avoid. Many would measure that tax bite against the prospect of permanent-resident status and prefer to remain underground.
Second, a version of that first disincentive also applies to the employers of illegals. The employer’s Social Security tax burden would rise sharply, as would his liabilities for workman’s compensation and unemployment insurance. So the employer, who would gain nothing at all from having guest workers rather than illegals, would have to be persuaded on the basis of his sense of civic duty and his risk of a legal penalty.
Third, a guest worker probably would not have familial privileges. That is, he would not have the same privilege of importing his nuclear family as a regular permanent resident alien has, and which many illegals exercise “informally.” So by entering the program, an illegal with a family would increase his costs in another way: he would have to support himself in his American domicile and his family in their foreign one. To a man laboring for marginal wages, that’s no small consideration.
Fourth, while the borders remain porous, the guest worker program would create an additional incentive to immigrate illegally, and then try to back-date one’s arrival for protection from the law. Employers would have financial reasons, already mentioned, to collaborate in this process.
Fifth and most distasteful, since a guest worker would have to show proof of employment to remain in the country, his employer would hold a club over his head. Thus, we would risk converting our illegal immigrants into modern-day helots, effectively indentured to their employers. This is much too close to slavery to contemplate comfortably; legal barriers to it would have to be carefully designed.
The above has been only the barest glimpse of the complexities that attend immigration control and immigration reform. There are other considerations as well, including a few that further impact the enforceability question, and your Curmudgeon will address them in due course. For now, it’s enough to say that this is a very tough knot, one we shouldn’t expect to unravel with a single round of legal and procedural changes. Indeed, to have tackled such a tangle at this time, with national elections on the horizon, speaks well of the political courage of President Bush and his advisors.
Part Two: The Lingering Horde
January 14, 2004
In yesterday’s tirade, your Curmudgeon addressed the outer envelope of problems that surround immigration reform, and touched lightly on the dynamics that would work against President Bush’s proposed “guest worker” program as a solution to our current immigration mess. Today he’ll take up the more emotionally charged question that’s lately been on so many lips: If they’re here against our laws, why not simply round them up and deport them?
Law-abiding people are almost always incensed when they learn that others have successfully flouted the law. This is especially true if the law demands some sacrifice or exertion from a law-abiding man, which explains the hefty preponderance of legal immigrants who support the rigorous tightening of our borders. So it’s no surprise that, when polled, two out of three Americans oppose any sort of amnesty for illegal immigrants currently in the United States.
This is an indicator that the political will for a major effort in this area, sufficient to accept major federal expenditures and reallocations of manpower, might well exist. However, the practical problems are severe. Much to the dismay of many who support, in James Lileks’s words, “Tupperware-tight borders,” they cannot be completely overcome simply by marshaling enough men and money.
The most obvious obstacles are:
- The size of the problem: estimates of America’s population of illegals average about 8 million souls.
- The economic incentives, both to illegals and to their employers, to evade an illegal-immigrant “dragnet” are more powerful than anything that favors enforcement.
- The lack of cooperation the federal immigration authorities have received, and should expect to continue to receive, from state and local authorities and police forces.
But there are others that are seldom addressed, and they could make things much worse:
- Many illegals are “well documented” in the conventional sense: they possess driver’s licenses and other forms of identification that are more than adequate for day-to-day life. Documents that certify one’s right to be within America’s borders are seldom required for anything. More, many native-born citizens could not produce such a document even if pressed.
- Illegals tend to live among others of the same national origin, and those who surround them tend to protect them at need.
- Once on these shores, a man is innocent until proven guilty of anything, including an immigration-law violation. With few exceptions, the country from which an illegal had emigrated would have no natural reason to cooperate in a prosecution that would bring about his repatriation—and who else would be able to prove that he had not been born in the United States?
So even with adequate financial and manpower resources, the task of locating and expelling even the greater part of America’s illegal alien residents will be a hard one. But we are not yet done.
One of the perennial problems of law enforcement is that news travels faster than anything else. Once it becomes known within a targeted group that it is a targeted group, intense preparations for resistance and evasion will commence. When the group is as large as the illegal-alien population, this guarantees an outpouring of effort and ingenuity that will be quite formidable indeed. Given the resources available to illegals, the most important of which are tabulated above, an immigration law enforcement department even as well-manned and funded as the United States Army would find them a tough opponent to defeat. When one adds that illegals are a substantial economic asset to their employers, who will therefore take an interest in assisting their evasion of the law, things begin to look very bleak.
Estimates of the size of the illegal-immigrant economy are roughly proportional to the illegal-immigrant population: about $250 billion in revenues per year. That’s a lot of resistance and evasion power. Even if a newly fledged Department of Immigration Control were to “steal a march” on the illegals, and succeeded in sweeping in a hundred thousand or so before the greater number of illegals realized what was in progress, the natural responses of the illegals and anyone who benefited from them would act to protect the remainder by whatever means were expedient.
Put another way, our adversaries are well entrenched, well motivated, possess copious resources, have numerous allies both active and passive, and can use our own entirely admirable legal principles to thwart the attempt to dislodge them.
Your Curmudgeon dislikes the word “impossible,” but the task of identifying eight million illegal immigrants, or any appreciable fraction thereof, then apprehending and expelling them comes as close to impossibility as any proposition in government.
Illegal immigrants are regarded by virtually everyone around them as a non-malign component of the American tableau. If they were perceived as a harmful presence—for example, if Americans generally believed illegal immigrants to be responsible for some group of serious social maladies—the picture would be much different. But illegals are not widely regarded as an invading horde, here to plunder and lay waste. What damage they’re seen to do to the country is generally indirect, for example through social service budgets. (Heather MacDonald at City Journal presents evidence to the contrary, but it’s public attitudes that matter, not the realities of the thing.)
If there were a promising path toward expelling illegals from our shores, it would be right and proper to do so. They’re here in violation of the law, after all, and an unenforced law weakens respect for all law. But given the circumstances, we may be required to accept what has been done and devise a coherent approach to normalizing those who’ve done it, while making arrangements to prevent anything like it from happening in the future.
Your Curmudgeon wishes that didn’t sound quite so much like “declare victory and withdraw.”
Part Three: Lines In The Sand
In response to yesterday’s Curmudgeonly tirade, reader Mark has commented:
Why put limits on immigration at all? You mentioned yesterday that illegals come here because (1) it’s a nice place, and (2) it’s easy. But you forgot #3, which is that employers obviously WANT them here. And whether they realize it or not, so do all the folks who benefit from the lower prices made possible by the lower wages. So really this fight is not just against illegals but a portion of America as well. So why ARE we fighting it? It’s very true that an “unenforced law weakens respect for all law”, but so does an UNFAIR law, or at least one perceived to be unfair. Maybe you’ve addressed this in a previous essay, but if not I’d love to hear your take on the justification for limiting immigration in the first place. Only after that can one discuss matters of enforcement, etc. and be credible.
Thank you, Mark. It’s a good thing your Curmudgeon’s readers can’t see him rubbing his hands together or hear him cackling fiendishly. This is the question he’s really wanted to tackle all along. But it will require an extended discussion, so please be patient.
Let it be admitted at once that Mark is entirely correct: an unfair law does weaken respect for the law, perhaps more so than a merely unenforceable one. The difficulties, of course, lie in the varying opinions about what constitutes “fair.”
Putting calipers on fairness in a political context has proved to be the most difficult of all tasks. In the private context, an arrangement is deemed fair if all the involved parties freely consent to it. But politics and law are the domains of unfreedom, where force is the method and conquest is the standard of vindication. Importing the concept of fairness to this venue is supremely difficult.
The Founders understood this, which is why they wrote a Constitution that sharply limits the powers of government. The smaller the area over which government’s authority extends, the fewer things the people will fight over through the political process, bludgeoning one another with fairness clubs. For that’s the language of most political contention: “Is this fair to XXX?”
In these days of unrestricted government—let’s be candid about it, the Constitution no longer binds government at all—there’s quite a lot to argue about. Government maintains the pretense of fairness solely through procedures:
- The electoral procedures by which the citizenry chooses its public officials;
- The parliamentary procedures by which legislators make laws;
- The judicial procedures by which judges review laws and decide on their detailed application.
These procedures fabricate an illusion of popular control of the State, thus perpetuating the facade most useful to our political elite: that We The People are the ultimate power, capable of dismissing the government in whole or in part at our pleasure, and that we therefore bear the ultimate responsibility for all the government’s deeds. Put another way, “we do it to ourselves.”
To which your Curmudgeon deposeth and sayeth:
The State, which Frederic Bastiat called “that fiction by which everyone seeks to live at the expense of everyone else,” is a mechanism utterly divorced from the people it rules. It possesses privileges that set it apart from all other human institutions:
- The asserted power of life and death over every man within its grasp;
- The assumed monopoly of “jurisdiction”—that is, the privilege of decreeing what the law is and what it requires of private parties—over its area of hegemony;
- A patina of legitimacy for the uncompensated use of coercive force—violence or the threat of violence—to get its way.
In reviewing these characteristic privileges, turn of the century sociologist Franz Oppenheimer partitioned the modus operandi of life into two mutually exclusive categories: the economic and the political. Private persons are restricted to the economic means—markets, noncoercive negotiation, and contracts—to pursue their goals. The State can use the political means—violence or the threat of violence—to attain its ends.
But of course, unless the State controls a preponderance of all coercive might in its realm, the private citizenry will have in reserve the option of revolution: the destruction of the existing State and its replacement with some other arrangement. Few States have managed to acquire such a preponderance; most States have had to deal with the possibility of being deposed. The prevalent technique for holding off revolution is to manufacture the consent of the governed.
This takes many forms, including the electoral mechanisms familiar to all Americans. But in the abstract, to manufacture the consent of the governed doesn’t require the trappings of democracy. It depends much more heavily on the purchase of allies and the deterrence of opponents.
A segment from a novel-in-progress, set on a colony world populated entirely by anarchists, illustrates the consent manufacturing process:
As the bell rang, Professor Arne Stromberg bounded in through a side door. The gaunt, gray-haired sociologist dangled a battered old briefcase from his right hand and a large canvas bag from his left. He tossed both at the side of the lectern, switched on the microphone and bathed the class in his relentlessly sunny smile. Armand straightened up and uncapped his pen.
“Good morning. Last Randsday I promised you that we’d have a special demonstration today, something you’ve heard about many times but have never seen in operation. Did everyone bring ten one-deka bills?”
There was a rustling among the seated students, but no one spoke.
Stromberg nodded. “All right. We’ll need a small clear area, and up here by me is as good as any.” He pulled an index card from his breast pocket and peered at it. “Will the following students please come join me at the front of the room: Albermayer, Claire; Diederick, Fred; Farquharson, Jules; Ianotti, Ottavio; Morelon, Armand; Pierce, Aurelyn; Reinach, Denise; Thorkild, Lars; Untermeyer, Klaus; and Wolzman, David.”
Armand started at the sound of his name. He rose and ambled down the center aisle to join the other students whose names had been called. When all were present, Stromberg picked up his canvas bag and spread it open before them. It was empty.
“Put any weapons you’re carrying in here. You’ll get them back when the demonstration is over.”
A prickle of unease danced along Armand’s neck, but he pulled his needlegun from his pocket and flipped it into the bag. Presently the bag bulged with an impressive amount of hardware. Stromberg deposited it by the side of the lectern with a clank.
“Very good. Now, arrange yourselves in a circle about ten feet in diameter and sit on the dais.”
Armand formed a rough circle with the other nine, then sat cross-legged on the wooden surface. The expressions on the other faces in the circle were wary.
Stromberg slipped through the circle, moved to its center and turned to face the lecture hall. An impressively perfect silence prevailed.
“You are about to see a demonstration of the State. For the purposes of the demonstration, I will play the role of the State. Please don’t become alarmed. Above all, remain in your seats.”
The professor swept his eyes around the circle. “Take your ten one-deka notes and fan them out before you.”
A student across the circle from Armand asked, “Why?”
Stromberg smiled down at her. “Just do it.”
They did.
The professor stooped and with practiced rapidity plucked a note from each student’s hands. It took about fifteen seconds. When he’d rounded the circle, he returned to its center, divided the notes into two sheaves of five each, and stuck one in his pocket.
A student in the circle cried, “Hey!” He started to rise from the floor.
Stromberg turned a stony face toward the objector. “Be quiet.” The young man subsided.
As if at random, the professor selected the student next to Armand and handed her the other five bills. The young woman accepted them with an incredulous stare. Stromberg smiled. “Add these to your fan.”
Armand looked sideways at the girl. If she had been prepared for Stromberg’s act, she gave no sign.
Stromberg stood at the center of the circle looking at his watch for a few seconds, then began to pluck bills from the students’ hands once again, quickly and wordlessly. As the professor approached, Armand shoved his nine remaining notes into his pants pocket. Stromberg cocked an eyebrow.
“Where are your dekas?”
“Safe in my pocket.” Armand smiled formally.
“Well, bring them out.”
“I prefer not to.”
A grin spread slowly across Arne Stromberg’s face and became a wide, vicious smile. “Ah, but you will.” He reached into his pocket, pulled out a Bronson coagulator and leveled it at Armand’s head.
A gasp raced across the hall. Armand’s breath went short. He’d never before faced the business end of a weapon in another man’s hand.
“You see, Mr. Morelon, I am the State.” Stromberg’s smile did not waver. “I can do as I please to you. If you refuse my demands, I can take your life, and no one can call me to account. That’s what it means to be the State. And that’s what it means to be a subject of the State. Now produce your bills.”
Armand’s blood rose. He started to clamber to his feet. Before he could do so, Stromberg’s foot lashed out and struck him on the breastbone. He toppled backward, roared in anger and made to rise again, but stopped. The professor’s thumb was visibly caressing the coagulator’s firing stud.
“You don’t have the idea yet, Mr. Morelon. Your family is the oldest and most honored on Hope. You’re used to gentle treatment, maybe even a little deference. But I am the State, and I concede nothing to you. You have no rights I am bound to respect. Your preferences are unimportant to me. You are only fodder for my plans. Produce your money or be prepared to die.”
The room buzzed with surprise and anger. Armand glared up in outrage. The gun did not swerve from his face. Abruptly Stromberg’s thumb bore down on the stud. The coagulator’s tracer beam struck Armand full in the eyes.
Every student in the hall screamed, Armand loudest of all. The brilliance of the beam dazzled him. He heaved himself backward, one arm thrown across his eyes. From around him came a thunder of feet as his classmates stormed toward the dais, toward Arne Stromberg.
“Wait!" Armand shouted. “I’m all right!”
The thunder died. Armand lowered his arm from his face and opened his eyes. His vision was a sea of colored blurs. It took several seconds to clear and reveal the surrounding tableau. His classmates were clustered around him, staring at him in shock.
A group of four held Stromberg by the arms. A wild panic was evident in their expressions. Apparently unfazed by the tumult he’d caused, the professor was shaking his head and clucking in disapproval. “I told you to stay in your seats. Mr. Morelon.” Stromberg pulled himself free of restraint, then squatted before Armand. “You have the makings of a revolutionary martyr. Or did you guess that my gun was disabled?”
“I don’t know. Maybe. No decent person would do such a thing, right?”
The professor nodded slowly. “That’s the problem I face year after year. No decent person would use force to get something he wanted from someone else. Force is for the defense of life and property, never anything else. You all drank that in with your mothers’ milk, and it’s been reinforced by two decades of life in a decent society.” He retrieved the dud gun from where it had fallen and returned it to his pocket. “Please, ladies and gentlemen, return to your seats. Yes, you in the circle as well. Oh, get your weapons from the bag first.”
This scenario, first proposed in the abstract by Frederic Bastiat, is the schematic for all State operations. The details will vary; the process of exaction and the process of buying allies via State-imposed transfers of wealth are seldom quite as bald as that in the fictional example. But the pattern covers everything the State does that private citizens are forbidden to do.
The State exists specifically to do that which private citizens would be punished for doing. This extends from the most Byzantine programs for forcibly transferring some persons’ wealth to others, to the most unimpeachable operations of justice against private predators. To maintain “the consent of the governed” for these acts, the State buys the support of important groups with wealth transfers, deters resistance with the threat of violence, and promotes the illusion of popular control through the election of representatives.
Since the State is, at bottom, a wealth-transference mechanism, it is plain that combat through political mechanisms, except in an absolutist regime that has none, over who shall be favored and who shall be mulcted is inevitable. Citizens and groups will struggle over the distribution of State swag.
The rationale We The People apply to this, when we can bring ourselves to talk about it, is that some things must not be left in private hands. Nearly all agree that the defense of the country and the administration of justice must be public—that is, State—functions. Most would agree that some provision for the helpless is an appropriate venue for State action, though there’s much disagreement over the details. As for the rest, we squabble. What one group considers fair, another considers highway robbery. As long as the State can keep the citizens squabbling among themselves, it will be safe from overthrow, which is its primary concern.
The argument over illegal immigration is an argument over a purported wealth transfer of an unusual kind. Those who are most exercised about it claim that illegals receive much more, in the form of State-funded social services, than they pay for. Those who regard illegal immigration as harmless or benign claim that the net transfer to illegals is minuscule at worst. Both are fighting on the battleground of fairness.
There are other facets to the immigration debate, of course: the demise of the assumption of assimilation; contentions about immigrants’ percentage participation in crimes against person and property; the formation of immigrant ghettos, usually according to linguistic commonality, that promote ethnic separation and multigenerational poverty. But at its heart, it’s about how fair it is that immigrants reap the benefits of the extended American welfare state—schools, public hospitals and clinics, Social Security, Medicare, Medicaid, welfare itself, and other social services—at the expense of current citizens.
Americans’ attitude toward immigration was most favorable when our governments were most restrained: during the late nineteenth and early twentieth centuries. But there were far fewer arguments about fairness generally in those days. At any rate, after 1913, when the Wilson and FDR Administrations set out to expand government, Americans became Progressively less friendly toward “outsiders”...even Americans who, a few years or one generation earlier, had been “outsiders” themselves.
Nobel Laureate Milton Friedman wrote in the early Sixties that open immigration would not endure in the face of an extensive welfare state. Whether Dr. Friedman believed that a net transfer to immigrants was really occurring, or merely expected that Americans would believe so, is not recorded. But, as with so many other things, he was dead on target.
States are geographically delimited, and subjection to one is not optional at this time. For so long as States impose wealth transfers to provide any sort of social service, immigration will be controlled by law. No society anywhere will open its borders infinitely wide; the political incentives are against it.
In that sense, the fairness question isn’t an objective matter, but a matter of the weight of public opinion based on whatever estimates of the transfers are most credible. It will be settled through political mechanisms, which are inherently collective, inherently imprecise, and ultimately unconcerned with anything but the stability and endurance of the State. But those mechanisms will generate laws and changes to laws.
Here we have the question that’s likely to decide the issue over the near term: what sort of immigration laws are adequately shaped and sufficiently visibly enforceable to mollify the electorate? For the special-interest dynamics that dominate governmental decisions will not weaken soon; the welfare state will not shrink appreciably over the next two decades. If anything, it appears poised to grow.
The larger the sphere of State action, the more passionate will be the struggles over it, and over who will be admitted to the circle of its beneficiaries, whether real or perceived. “Insiders” will always resist the circle’s penetration by “outsiders,” while “outsiders” will always clamor to get in, after which they’ll do their damnedest to slam the door behind them. Schematically, there’s no difference between the contentions over immigration law and those over any other scheme of State largesse. That the enforcement of a border—literally a line drawn in the sand—should be fought over as a matter of fairness might seem absurd, but it’s no less inevitable for that.
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