R.I.P. Immigration Bill
by George Liebmann

The art of statutory draftsmanship, Learned Hand once said, is the art of "proliferating a purpose".James Madison observed in Federalist No. 62 "It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.." The ideal is that of Friedrich Hayek: "Uniform rules laid down in advance" conferring Kipling’s "leave to live by no man’s leave/ Underneath the law." The law should tell people what is encouraged and discouraged, its purposes to be internalized. Force should be reserved only for the gravest infractions.

The terms of the rejected immigration legislation were known to no legislator, let alone any citizen or alien. It contemplated tens of millions of discretionary administrative actions: assessment of ‘points’ to putative immigrants, recording of mandated ‘base touching’, collection over years of installment fines, and, most astonishing, a new system of biometric identity cards, potentially internal passports on the old Soviet model, required of all citizens or aliens seeking even casual labor.

It is becoming that the first successful amendment, sealing the bill’s ultimate doom, was one supported by the AFL-CIO and ACLU to delete this noxious feature. It is amazing that the administration, the nation’s three leading newspapers, and several presidential candidates of both parties (Clinton, Obama, Mc Cain and, for all practical purposes Giuliani) supported this grandiose scheme.

Bear in mind that registration would be carried out by the notoriously incompetent INS, which could not track aliens when they were required to register; that adjudication was confided to the political discards who are this administration’s immigration judges; and that the cost of the Blair government’s identity card scheme, in a nation with one-fifth our population, was variously estimated at between five and twenty billion pounds.

What ‘purpose’ should rational laws ‘proliferate’? It is that the nation needs energetic and law-abiding migrants, but that not even it is rich or stable enough to welcome unlimited migration, let alone ‘benefit migrants’. The status quo loosely serves this purpose: a porous border makes immigration risky but far from impossible; in Texas at least, most state benefits are withheld from migrants, who have an interest in good behavior and in staying out of the clutches of the law. The situation has the merit of being the product of private ordering, whereas blanket legislation would make the national government the target of millions of individual and group grievances.

Rational law would be composed of separate measures:

- Repudiation of the Supreme Court’s sentimentalist decision in Plyler v. Doe (which the Court left in control of Congress) to make clear that benefits, save perhaps for public education, are provided at state discretion, reducing the exuberance of the Ninth Circuit and California legislature.

-Reinforcement of the border, a measure that can only be partially effective.

-Curtailment of family unification provisions, bidding fair to render the nation the world’s old age home, and of the ‘lottery’ inviting the unskilled in countries without cultural ties to the U.S. to aspire to American citizenship

-Expansion of legal roads to citizenship for persons, illegals or not, with desired skills or the willingness to remedy designated labor shortages

-Conditioning of citizenship on meaningful English and civics tests, for both migrants and their non-native-born family members. A corollary of this, not the federal government’s business, is that Florida and the Mexican border states should imitate the European example by making fluency in both English and Spanish a requirement for high school graduation.

-Provision of economic assistance to Mexico, conditioned on elimination of current barriers to private land ownership, home ownership, and establishment of small businesses, and curtailment of the corruption requiring payment of protection money to the police. A demand-based testing-and-treatment drug strategy in the United States would be a useful contribution to this end. We may recall that elimination of intra-European trade barriers was a condition of Marshall Plan aid, and that the NAFTA treaty proclaims a purpose to "promote conditions of fair competition" and "increase investment opportunities." Migration pressures will not be eased until Mexican life offers opportunities other than unskilled employment in maquildora plants.

Nothing is said here of employer sanctions, the rationale for the onerous identification provisions sought by our ever-expanding ‘security’ bureaucracies. They are, and would remain, exercises in organized hypocrisy; political pressures from large business will see to that. Employer sanctions should instead involve ferocious enforcement of existing wage payment, worker safety, and anti-peonage laws, and of wage and hour laws where applicable; complaints against their violation should not be admissible in deportation proceedings. But arrangements between a willing employer and a fairly treated employee are not what the criminal law of a capitalist democracy can be about.

These changes will leave millions of migrants in the legal limbo that they chose for themselves, though with added safeguards against being abused and added opportunities for citizenship not involving a bureaucratic maze of point assessments, departure and re-entry requirements, and long-term fines

We do not need to again be described by a prominent journalist as ‘a society sickened by quack cure-alls’. Nothing will solve whatever ‘problems’ exist but time, the elimination of perverse incentives in the United States and the improvement of conditions in Mexico. These tasks, to paraphrase the words of the late George Kennan, are the work not of physicists but of gardeners.

George Liebmann is an attorney in Baltimore and is president of the Calvert Institute.