Should someone who enters the US illegally receive the same legal rights and social benefits as legal residents? Should someone who enters the US legally as an immigrant receive less social transfers than someone native-born? If one accepts the principle, as Owen Fiss does, that a sovereign nation must distinguish between aliens and citizens, illegal and legal immigrants, these questions do not permit clear yes or no answers.

You may have anti-immigrant sentiment, as Fiss believes many Americans do, but still recognize that protection from crime, judicial due process, or national labor laws must include illegal immigrants. Once people are here, the legal system must protect them. There can be no hunting license for natives to prey on illegal immigrants. On the other side, you may have pro-immigrant inclinations, as many Americans do, but still be hard-pressed to defend an employer who sacks citizens to hire illegal immigrants or who applies affirmative action preferences to minority immigrants.

Policy decisions are made in the gray area between these extremes. What factors can help guide us?

The first factor is the effects of the policy on the electorate’s well-being. Part of this is economic. Simple economics argues that the state should be less generous to immigrants than to the existing electorate. If tax-funded benefits are strictly private, why should citizens give those benefits to non-citizens, much less to illegal aliens?

But many tax-funded benefits have spillovers. If immigrants live in unhealthy conditions, disease may spread. If they are poorly educated, national productivity may suffer. If they have poor employment chances, they may commit crimes. Programs that reduce these adverse outcomes may benefit even the most narrow-minded citizen.

The second factor is the effects of policy on the well-being of the immigrant, legal or illegal. We may favor giving some benefits to immigrants because we care about how they fare. We may choose to help illegal immigrants who are hard-working members of our community because they are outstanding human beings.

Fiss wants the judiciary to draw a boundary in the gray area in favor of immigrants, on the principle that the Equal Protection Clause of the Constitution prohibits “the creation of a near caste-structure . . . of socially and economically disadvantaged groups . . . that live at the margin of society”; and that immigrants are exceptionally likely to fall into this group. He favors restricting the ballot, but not much else, to citizens, and makes little distinction between legal and illegal immigrants. Nowhere does he consider the fact that more funds spent on immigrants may mean less funds spent on disadvantaged natives or that more spending on illegal immigrants may mean less spending on legal immigrants.

I find his arguments strained, and reject as antidemocratic the notion that the judiciary should determine policy in this area. We may all oppose social exclusion, but to argue that the Constitution requires that courts regulate social policies to limit such exclusion seems to be an extraordinary reading of law. Fiss argues that immigrants should have a privileged distinction in social policy because they are in “danger of being turned into pariahs” whereas poor natives face no such problem. Because immigrants do not vote they merit special judicial protection. But surely he knows that many immigrants are highly educated with high incomes whereas many Americans from disadvantaged groups are poorly educated with low incomes. The implication that the “social disabilities” of being an immigrant exceed those of being poor in the United States misses completely the bifurcation of the US income distribution between rich and poor.

In some instances I agree with Fiss about where we ought to draw the boundary between what we do for aliens and citizens. But in all instances, I would leave the decision in the hands of the electorate.

Fiss argues that a state should not exclude illegal immigrants from taxpayer-funded adult literacy programs on the grounds that their having “violated the law in coming here is irrelevant” to their eligibility. Citizens can legitimately decide that the benefits of increasing the literacy of illegal immigrants outweigh the costs (I would so decide), but surely citizens can legitimately decide the opposite.

Fiss argues against imposing criminal sanctions on employers for hiring illegal aliens, because it will force the illegal aliens to live at the margins of society. But what about the legal citizens and immigrants who might otherwise have held those jobs? Under Fiss’s analysis, it is legitimate to push them to the margins of society, because they don’t bear the special mark of an immigrant. But if you tell employers that they are free to hire illegal workers, they or market intermediaries will provide an ever-increasing supply of such workers. We will end up with more, not fewer, people at the bottom of the income distribution.

Fiss recognizes that the end result of his analysis is that the nation would be left with only “fences, deportation, and criminal sanctions” to deal with illegal immigrants. Logically he cannot object to such policies, and he does not. But surely it is more sensible and humane to make finer gradations to decide that some tax moneys may go to people who enter illegally while other moneys cannot be spent on them; that legal immigrants should have greater access to social programs than illegal immigrants but less access than natives. The right place to argue over the eligibility of non-citizens for various social benefits is in the Congress or state legislatures.

What most disturbs me about Fiss’s article is the notion that immigrants are somehow so “socially disabled” that they need special judicial intervention to keep them from becoming a low-level caste of pariahs. I see the opposite: immigrant communities that are a vibrant addition to our nation, and millions of skilled and hardworking immigrants succeeding in the mainstream economy. The key defining aspect of America is not immigrant status. It is income. Our community of equals is threatened not by immigrants nor by their eligibility for particular social programs but by our income distribution.