John Baker, Jr. argues that attempts to restructure immigration policy must focus on the economic incentives of both businesses and foreign workers if the rule of law is to be upheld.
Speaking on immigration to law school audiences and defending the nation’s right – indeed, obligation – to distinguish between citizens and non-citizens is quite a challenge. It helps when I begin by mentioning my representation of some “unauthorized aliens” (the term used in immigration law), my recruiting of foreign students, and my promotion to foreign investors of the EB-5 program for a “green card” and eventual citizenship in return for large investments that generate new jobs for American workers. At that point, it seems those who have come determined to confront me are now willing at least to listen. Apparently, they conclude that “Maybe, he doesn’t actually hate foreigners.”
Immigration is the one social issue which actually falls within the authority of the federal government due to a sovereign’s international right to control its borders. It is also the one social issue over which the deadlock in Washington currently appears to be unbreakable. Compare the abortion issue on which, despite deep divisiveness, the Congress passed, the president signed, and the Supreme Court upheld the Partial-Birth Abortion bill. Emotions on both sides of this most controversial issue were as strong as—if not stronger than—usual, but the rational argument for the legislation tipped the balance. With immigration, the debate in Washington lacks rational argument because it is dominated by the extremes of those for open borders versus those who say they oppose illegal immigration but who actually also oppose legal immigration.
Congress last enacted broad immigration legislation in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act. This was supposed to be a “get tough” law that would deter illegal migration to the United States. Instead, illegal immigration has only escalated since then, to at least 11 million according to the Census Bureau. Alarmed by the uncontrolled increase in illegal immigration, much of the public wants even tougher measures. What almost nobody mentions is that certain “get tough” provisions in the 1996 law had the opposite effect of what was intended. They actually encouraged increased illegal immigration. Rather than going back and forth across the border, as they previously did with ease, illegal workers chose to move their entire families to the US rather than incur the repeated costs of paying coyotes to get them across a tightened border.