Owen Fiss makes my day. For some years now, in a series of essays, book reviews, and op-ed articles,1 I have argued for an immigration policy that would shift enforcement to the border while effectively reducing, or at least freezing, the current level of internal enforcement aimed at punishing employers of illegals (via employer sanctions) and the illegals themselves (via ID cards, INS raids with a view to detection, detention, and deportation, et al.). A bipartisan consensus, however, has moved increasingly in the opposite direction–by zeroing in on the illegals already in our midst, not just through punishments but even (for many) by denial of access to social benefits assured to all Americans. Despite this trajectory, I remained optimistic that I would not be lonely for too long. Frankly, however, I had expected fellow economists and political scientists to move in my direction. Instead, Fiss brings constitutional law to bear on the issue, lending me a wholly unforeseen and entirely welcome ally.

Two Policy Obiectives

Enlightened Americans broadly share two principal objectives in their conception of an appropriate policy towards illegal immigration: to reduce the illegal inflow; and to treat people who are here, whether native or naturalized or alien, with the basic decency that each of us owes to others within the community. This fundamental good sense defines our obligations as much as their rights.

The first objective is typical of nearly all societies: borders are commonly defined to exclude and borders out of control simply do not sit well with the body politic. But the second objective is, at least in intensity, uniquely American. Other modern societies also exhibit elements of it, but rarely with our passion and consistency.

The explanation lies in our history: the absence of an identity defined by shared memories that define “us” against “others,” and a history of immigration that leads the culture to pride itself on ensuring chances for each and all. Our sensibility is offended at its core when we contemplate that any group, any individual, is denied fair access to the opportunities that our country offers.2 The notion that we can thus live alongside an underclass of humanity, denied access to social benefits and economic betterment simply because its members are illegal aliens, violates our fundamental sense of decency and morality.3

A False Start

Our legislators have typically tried to achieve these twin objectives by eliminating illegals who are already here: the first objective having been fully achieved, the second followed as well since you could not ill-treat illegals if there were none. To that end, efforts have been made since the 1986 legislation to reduce the stock of illegals through an amnesty program, and to reduce the flow of illegals through employer sanctions that would eliminate the magnet of employment opportunity.

Predictably, amnesty left many still in illegal status. More important, employer sanctions could not reduce the flow. Even in Germany and Switzerland, government analyses had warned, such sanctions face serious enforcement problems since few judges would impose the necessary penalties against employers whose only sin was hiring (as against ill-treating and exploiting) the illegals. Our strong civil liberties traditions and groups raised the enforcement hurdle even higher. Besides, the difference in prospects at home and in the US are so vast that employer sanctions could not seriously reduce incentives to attempt illegal entry.

In effect, then, the illegals continued in our midst, with little change in the attempted entries: the first objective was hardly advanced. At the same time, INS harassment increased with the enhanced domestic enforcement, pushing yet more of the illegals into the underclass. So, the second objective was even set back. The 1986 consensus on policy had been plainly wrong.4

Current Follies

The answer therefore must be to turn the policy on its head. Try to control immigration at the border. To be sure, this strategy will not work too well since more than half the illegals are now estimated to come across in difficult-to-monitor ways other than crossing the Rio Grande. But such enforcement will produce the satisfaction, at low cost, that “we are trying to control the influx.” As to the illegals who are in: leave them alone, more rather than less. And treat them like us, enjoying our social and economic rights.

But instead, we have again worked ourselves up into a frenzy, seeking ever more domestic enforcement. In addition to employer sanctions, there have also been increasing demands to deny the illegals (even legals at times) access to social benefits in the tired and false expectation that these policies will significantly reduce the incentive for attempted entries. So, we see the prospect of more domestic enforcement that will do little to reduce illegal inflows and much to drive the illegals into an underclass that degrades them and offends our moral sensibilities, while also violating the constitution, according to Fiss’s analysis.

Pete Wilson Meets “Harvard Square”

Two recent developments have hastened this movement to the brink. First, whether Pete Wilson was also motivated by his own animus against illegals and/or a low-politics pandering to his constituents’ animus, there is no question that California had fiscal problems, analogous to those in Texas and Florida. While illegal immigrants create a net (if mild) fiscal surplus, immigration studies reveal a distributional problem: the federal government gains net revenue, and the states lose it. This fiscal problem for states results in part from the educational expenditures which were in contention in Plyler v. Doe (see Fiss’s article for analysis of this case). Efforts by state legislatures to exclude illegals from social benefits might, then, be viewed a political strategy aimed at generating federal assistance for these states. Because immigration policy is a federal matter, I should think the federal government does have constitutional responsibilities in this area. But let me leave it at that.

Far more worrisome is the unfortunate intellectual role played by economists and sociologists. Two of their arguments have helped turn the illegal immigration “phenomenon” into a “problem”: (a) because illegals are typically undereducated and unskilled they have been a contributory factor in the decline in real wages of our own unskilled since the 1980s; and (b) inner-city problems have been accentuated by immigrants who have taken jobs that would otherwise have gone to natives. As it happens, many of these social scientists are located currently in Cambridge and can be aptly described as the “Harvard Square” school of naysayers. Among the economists is George Borjas of Harvard’s John F. Kennedy School of Government, who drew media attention as Pete Wilson’s adviser.5 Among the sociologists are Orlando Patterson and Kathleen Newman, now at the Kennedy School. Patterson has drawn on Borjas’s economics to urge President Clinton to take on illegals more strenuously. Newman’s remarkable work on the inner-city problems has correctly emphasized the importance of economic opportunity for blacks, but is unfortunately often interpreted as implying a substitutional relationship between blacks and unskilled immigrants.

I have no space to say why these arguments are unconvincing: Francisco Rivera-Batiz and I are just finishing a book entitled In the Eye of the Storm: Targeting Illegal Aliens, where we refute these alarming contentions, both conceptually and empirically.

But I may add that many of these intellectuals have been led to the non sequitur that we must encourage skilled immigrants at the expense of the unskilled ones. This proposal is not merely economically indefensible (since it is impossible to make a convincing case that the skilled immigrants will produce greater benefits for us) but also violates our deepest moral sense. Suppose we had only one place for an immigrant, and could give it to a rich doctor from India or an impoverished peasant from Haiti. Suppose you are to vote entirely on the basis of whom you wish to assist and not a whit on which immigrant will do you good. Which would you choose? I have little doubt that the average American would choose the impoverished peasant. The Statue of Liberty does capture that essential truth about us; and it is that truth which is obscured by focus in the scholarly debate on what is materially good for us and by the unconvincing economics often deployed to support alarmist views.

1 Several of these have been reprinted in my latest book, A Stream of Windows: Reflections on Trade, Immigration and Democracy (Cambridge, Mass: MIT Press, 1998); see especially chaps. 31-34 and 39.

2 Yes, there are serious lapses, especially in regard to blacks. But here too, the strength of the civil rights movement, and our ability to make steady if inadequate progress towards equality of access to the black community, are reflections of what I argue in the text. So is the fact that, when seized by panic over the rise of Japan in world trade, the Europeans simply erected significant barriers against them without any angst whatsoever whereas we had to go through a song and dance about how “unfair” the Japanese were in trade, thus first convincing ourselves that if we were to strike the Japanese with trade sanctions and barriers, it was a ‘fair’ move on our part! On the Japan question, and how we handled it as described, see again A Stream of Windows, esp. chaps. 14-16 and 18-21.

3 This sentiment surfaces in a much weaker sense in other civilized societies, simply because it is difficult to come down hard on hapless humanity. I have often cited a telling quote from the Swiss novelist Max Frisch who, on observing how West Europeans found it extremely difficult to send home the gastarbeiteren (guestworkers) even though they had been brought in on the explicit understanding that they could be sent back, remarked: “we imported workers and got men instead.”

4 This is just what I had anticipated; see my Wall Street Journal article of February 1, 1985, reprinted as Chapter 33 in A Stream of Windows.

5 Where Borjas has been arguing that the unskilled immigration has harmed our workers’ wages, Dani Rodrik of the Kennedy School has endorsed the fraternal claim that trade with poor countries has harmed our workers in his 1997 pamphlet, Has Globalization Gone Too Far? I have challenged both assertions in my own recent research.