The legal and moral argument put forth by Owen Fiss–that all foreigners in the United States are entitled to the same opportunities as citizens for employment, education, Medicare, Medicaid, public housing, food stamps and other social benefits–fails to consider why we make distinctions among different categories of foreign residents and the varied public purposes that these distinctions serve. Twenty-five million individuals are admitted into the United States each year for a limited duration: twenty three million are temporary visitors-tourists and business travelers, 430,000 are students, their spouses and children, 227,000 are temporary workers, 215,000 are exchange visitors. In addition, the United States admits about 750,000 immigrants each year and another 140,000 or so refugees. There is a complex set of rules as to the rights and benefits for each of the categories of persons entering the country.

US law distinguishes between immigrants and refugees admitted for permanent residence, and non-immigrants who are admitted for limited time periods such as tourism, study, or temporary work. Temporary visitors are barred from permanent employment and social benefits. Foreign students may work, but are not entitled to most public benefits. Temporary workers may receive some public benefits and their employers are legally required to provide others. Except for migrants and refugees, visitors do not have the right to remain indefinitely, though complex government regulations enable students and other short-term visitors to seek a change in status in order to become immigrants. Immigrants are given access to public benefits that approximate those of citizens, but pending their admission to citizenship there are some restrictions. Illegal migrants are denied most benefits, although their children may attend school–not withstanding restrictive efforts in California–and they have access to emergency care in hospitals.

The rights and benefits of individuals who reside in the United States but are not citizens are subject to debate. The issue was initially raised in Texas when a local school board sought to bar school admission to children of illegal aliens, a decision subsequently overruled by the Supreme Court in Plyler v. Doe in 1983. In 1994 California voters adopted Proposition 187, which denied educational and other benefits to illegal immigrants, and in 1996 Congress passed new welfare legislation that restricted legal immigrants from acquiring most welfare benefits. In mid-1998 Congress amended the legislation by reinstating food stamps to a quarter of a million children, elderly and handicapped immigrants if they had entered the United States before August 1996, when the welfare reform legislation took effect. Congress also agreed to restore Medicaid and Supplemental Security Income (SSI) benefits to 420,000 legal immigrants who had lost benefits under the welfare reform.

The debate over benefits is partly driven by fiscal considerations. State and local governments bear most of the costs of public services provided to legal and illegal migrants and their children, while most of the taxes that migrants pay go to the federal government. The debate is also driven by a desire to distinguish between immigrants admitted lawfully and illegal immigrants. Many US citizens feel strongly that illegal immigrants should not receive public assistance other than emergency medical attention. There is also a debate about which categories of social benefits should be provided to legal migrants. Sponsors of immigrants are expected to assume financial responsibility for newly arrived immigrants who otherwise might become a public charge. Many members of Congress, for example, argue that elderly immigrant parents should be supported by their children, and not be eligible for SSI benefits until they are citizens or have been in the United States for a specified period.

Whether migrants, legal or illegal, are entitled to the same rights and benefits as citizens is an issue in all advanced industrial societies. Or, to put the question another way, should citizens have rights and benefits that are greater than those of non-citizens? Is the welfare state intended only for citizens of a country or for all who reside within its territory? Fiss argues that there should be no distinctions between citizens and non citizens with respect to social benefits and access to employment. Citizens have the exclusive right to vote, but they should have no exclusive claim to any other rights or social benefits. Nor, he argues, should any distinctions be made among categories of migrants. Illegal residents should be entitled to education, social welfare benefits and the right to employment no less than legal migrants. “Laws that bar illegal immigrants from working” he writes, “force illegal immigrants to survive by begging or stealing and thus to live at the margins of society.”

Fiss rests his argument on constitutional and on moral grounds. Though I defer to his superior expertise on constitutional questions, I note that thus far the courts have not endorsed his position that the Fourteenth Amendment prevents legislative bodies from drawing distinctions between citizens and non-citizens or between legal and illegal residents. Plyler, which overruled the Texas restrictions on school admission for illegal migrants’ children, was, as he notes, limited in its scope to the protection of children. Whether it should be applied to all other classes of illegal immigrants is a matter the courts have yet to decide. I think it unlikely that the courts would rule that Congress is barred from prohibiting illegal residents from working or obtaining welfare benefits.

The more substantive argument is a moral one. Fiss argues that distinctions between citizens and non-citizens turn both legal and illegal immigrants into “social pariahs,” and that to deny benefits to any class of non-citizens is to impose social disabilities upon that group. Fiss recognizes that by calling an end to such distinctions he may appear to be questioning the validity of laws regulating admission. He denies, however, that his intention is to subvert the admission process. Admission laws, he writes, “can be enforced by fences at the borders, deportation proceedings, or criminal sanctions; not, I maintain, by imposing social disabilities.” He says he does not question the validity of laws regulating admissions, and he is prepared to assume “for the present purposes” that they are just.

One must address the question then of whether the abolition of the distinction between citizens and all classes of non-citizens residing in the United States does not, in effect, create an open border policy. What if all of the twenty-five million individuals who enter the United States each year could seek employment and obtain the same welfare and educational benefits as citizens? Employment opportunities are the single most important determinant of illegal migration to the United States. As long as jobs are available and wages in the United States are higher than in other countries individuals abroad will try to gain entry into the US labor market.

Fiss is no doubt right in noting that individuals who are illegally employed are socially disabled. Reports abound of Mexican, Chinese, and Thai illegal immigrants in sweatshops and in servitude, forced to pay back traffickers, and lacking the legal means to protect themselves against unscrupulous employers. Workers cannot complain about wages or working conditions if their employers can threaten deportation. Legalizing illegal immigrants’ right to work seems like an obvious solution, except that one cannot make employment legal for those whose residence is illegal. If anyone in the United States, including short-term visitors, is free to work, we will have created the single most important incentive for illegal migration and at the same time ended the only viable instrument for detecting and deporting illegal migrants other than interdiction at sea and at borders. Indeed, border controls would be of little or no value. As it is, half the illegal migrants in the United States already enter legally; they remain after their visas have expired. The alternative to legalizing employment for illegal migrants is to enforce existing legislation imposing penalties on employers for hiring illegal migrants, but Congress has thus far been unwilling to put in place a national system for identifying citizens and others who are legally entitled to work.

Should illegal migrants have access to the welfare system and to other social benefits? There is no evidence that public benefits draw in illegal migrants. Denying emergency medical care to illegals creates risks to public health. Denying education to the children of illegal migrants impairs the development of children who may become long-term residents. And denying access to emergency medical care and to education undermines the trust necessary for the functioning of essential services. But these considerations do not pertain to all social benefits. When public policy aims to induce illegal migrants to return home or be deported, it makes no sense to provide them with Medicaid, or Supplementary Security Income.

The broader question is whether illegal immigrants should have the same social benefits as citizens and legally admitted migrants. The question is based on the principle that social benefits are acquired through membership in a community. The sharing of social benefits and the transfer of income payments from one individual to another is within a community and is not automatically extended to those who do not belong to the community. That, of course, begs the question of who belongs to the community. Simply being here does not make one a member of the community. The criteria for community membership include citizenship, by birth or by naturalization. We welcome migrants into our community as citizens once they meet a variety of conditions, and welcome refugees and asylees who have been admitted temporarily because of conditions in their country of origin. Though not (yet) members of the community, they are nonetheless entitled to the full panoply of social benefits (plus some assistance not provided to others) because they are in need of protection and are, for the time being, unable to return home safely. If illegal migrants are not caught and deported, then in time (how much time?) they and their children acquire de facto membership in the community;. A humane policy is one which regularizes their status.

Should legal migrants then have access to all the benefits of citizenship short of voting rights? Most rights and benefits are extended to migrants in order to enable them to become full members of the community–with equal rights to employment, education, housing and welfare benefits. But there is a long-standing view in the United States that migrants should not become a public charge except under very limited circumstances. The Commission on Immigration Reform, chaired by the late Barbara Jordan, argued that sponsors who provide the financial guarantees to allow a migrant to enter should be held financially accountable for that migrant. Naturalized citizens and migrants who sponsor their elderly parents, for example, should be responsible for their financial support at least until the sponsored immigrants become citizens. Similarly the sponsors of spouses and children should assume responsibility for the duration of the familial relationship or for a specified period.

The rules with respect to benefits–and we have barely scratched their complexity-are often unclear and inconsistent. One reason is that they serve a variety of diverse objectives. We want policies that will deter illegal migrants, reduce the costs of the welfare system, prevent immigrants from becoming public charges, enable migrants to become full members of the community, assist refugees and asylees (including those awaiting determination of their status) and treat children and others in need of protection humanely. Given these varied public objectives and the trade-off among them, we need a deliberative legislative process, or an immigration service or commission, that can formulate clearer and more consistent rules than we now have. Alas, our fragmented policy-making system, as it relates to immigration issues, makes coherent policies difficult. Still, our present policies are not all that bad and in our usual messy fashion we are trying to sort out who should get what. What we don’t need–at the expense of workers and taxpayers–is the kind of solution offered by Fiss: that everyone present within the boundaries of the United States ought to have the same rights and benefits. It would be politically irresponsible to turn these legislative issues over to the courts to decide on the basis of constitutional principles. Instead, we need reasoned analysis and public discussion of how we can balance diverse objectives to accomplish what is fiscally possible, what is humane, and what best serves the goals of incorporating migrants into citizenship, deterring illegals, maintaining public health, and protecting children.