Immigration Wars: Forging an American Solution (5 page)

Increasing legal outlets for work-based immigration should
eliminate any excuse for employers to hire illegal immigrants. As a result, existing employer sanction laws should be aggressively enforced. Employers who disobey the law have an unfair advantage over competitors who comply. The immigration agency should be empowered to use whatever technology it deems appropriate to maximize adherence to the law, such as E-Verify, which checks identification against federal databases. Currently, only a tiny fraction of employers voluntarily participate
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and just one in eight prospective employees are checked through E-Verify, even though 92 percent of requested ID checks are dealt with instantly. That system has the potential to be improved sufficiently that it could be made mandatory.
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At the same time, employers must be offered a safe harbor to ensure that if they cooperate with whatever system is in place, they will not be penalized if the system fails. A comprehensive immigration reform law should allow administrative flexibility to reflect technological advances in employee status verification, while at the same time requiring the federal government to extend a safe harbor to employers who comply in good faith.

For all forms of immigration, the current restrictions on government benefits should remain in effect. Indeed, as we will discuss below, we believe states should be given greater latitude in setting rules for government benefits. It is vitally important to the
success of our immigration system, and to sustain public support for that system, that immigrants come to the United States for the right reasons: for freedom and opportunity, not welfare.

Making these changes will transform our immigration system into one that serves America’s needs and interests and that proclaims to the world that we remain a land of opportunity. They will enable us to compete more effectively with countries that already have made important changes to their immigration system, and will harness the energy of immigrants to grow our economy. They also will remove the incentives to immigrate illegally.

This is the type of immigration policy we need to sustain our status as the greatest nation in the world.

Many histories of American immigration policy largely overlook the fact that for most of America’s first century, immigration policy was almost entirely the exclusive domain of state authorities.
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The Constitution assigns authority to Congress over naturalization, which is quite distinct from immigration. Of course, the federal government has exclusive constitutional domain over foreign policy and commerce, and it would not do us very well to
have fifty different immigration policies. It makes little sense even to contemplate such a scenario given that the U.S. Supreme Court repeatedly has recognized the federal government’s hegemony over immigration.

Acknowledging that the federal government should and does have primary authority over immigration policy does not mean, however, that it cannot or should not elect to share that authority with the states in ways that make sense. It does so to a limited extent already. Were Congress to expressly authorize the states to play a larger role, in our view it not only would improve our nation’s immigration policy but also could greatly increase the odds for broader political buy-in for positive comprehensive immigration reform.

Our federalist system envisions policy differences among the states, reflecting different needs and priorities and fostering innovation and competition. In particular, states have varying needs, interests, and priorities when it comes to immigration. An agricultural state, for instance, might have a greater need for seasonal workers. States with high-tech industries might want to boost the number of visas for highly skilled workers. States that have generous welfare systems might have an interest in limiting immigrant access to those services—or they might choose as a matter
of policy to make those benefits even more widely available. Still others might want to minimize the impact of immigrants on their economies. Allowing some variance among the states to reflect their respective priorities would mark an important innovation in immigration policy that builds upon the strength and vitality of our federalist system.

Above all, the relationship between states and the federal government in enforcing immigration policy should be as partners, not as adversaries. Unfortunately, the reverse has been true over the last several years. Perhaps nothing could do more to improve immigration policy than strengthening expanding state autonomy and the cooperative relationship between states and the federal government when it comes to immigration.

We think such flexibility makes sense in two principal areas.

The first is social services. The notion that immigrants should come to America for opportunity, not for welfare, has been a cornerstone of national immigration policy from the beginning—indeed, long before we developed an extensive network of social benefits. The concept that newcomers should earn their own keep must remain a vitally important baseline principle of American immigration policy—not only to generate public support for immigration but to ensure that the long-term economic consequences
of immigration remain positive. Under federal law, illegal immigrants are entitled only to K–12 education and emergency medical services, and even legal immigrants are not immediately eligible for most social welfare programs. Children born in the United States, however, are citizens and therefore entitled to social services.

Despite limited eligibility, costs are substantial. Thirty-seven percent of immigrants receive some welfare benefits, compared to 22.5 percent among the native population. The percentage of immigrants receiving welfare assistance varies dramatically among the states—in Virginia, welfare beneficiaries represent only 20.2 percent of the immigrant population, compared to 48.1 percent in Minnesota.
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States already have a significant amount of flexibility when it comes to providing benefits to illegal immigrants and setting requirements for legal immigrants to secure benefits.
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Because states bear the major cost of most social welfare benefits—especially education and health care—they should be given even greater flexibility.

This is why the Obama administration’s attempt to coerce states to adopt a major Medicaid expansion as part of its national health-care program had the effect of inflaming anti-immigration sentiment. Although the administration assured the states that illegal
immigrants would not be eligible for Medicaid benefits, their children who are born in the United States are eligible because they are citizens. Moreover, if illegal immigrants are offered a path to citizenship or permanent legal residency, eventually they will become eligible as well. Fortunately, the U.S. Supreme Court struck down the Medicaid expansion by a 7–2 vote as unduly coercive and therefore contrary to constitutional principles of federalism. The proposal should not be resurrected.

Instead, Congress should confer express authority on states to determine which services should be provided to immigrants, both illegal and those who have not yet acquired permanent legal residency or citizenship, and under what terms and conditions they may receive those services. States should be allowed to determine reasonable durational requirements and/or user fees for services, that is, require that immigrants contribute to tax revenues for a minimum period of time before becoming eligible to receive social services, or require that they contribute to the cost. In particular, as to emergency medical services—which must be made available to everyone under current federal law—states should be allowed to define which services are covered, so that emergency rooms are no longer used to obtain nonemergency care at great taxpayer expense.

If the opportunity to immigrate is decoupled from welfare entitlements, and if states are given broad latitude to determine eligibility for or offset the costs of such programs, it likely will increase public support for immigration reform while at the same time encouraging immigrants who are coming to work. Ultimately, those who contribute to public coffers should be eligible on an equal basis for social services. But the more we expand eligibility, the greater the burden we place on those resources and those who pay for them. As the entities that shoulder most of the burden, states should have maximum flexibility to decide who qualifies for their services and under what circumstances.

The second area in which the states should be given more flexibility is law enforcement. Policing immigration is a big job—one that we believe will shrink considerably if we fix our overall immigration policy, but a challenging job nonetheless. Illegal immigrants who commit crimes should represent a top law enforcement priority both nationally and locally. Indeed, it is an evasion of federal responsibility to allow illegal immigrants to prey on people and property. Likewise, immigrants who are here lawfully but engage in crimes should be removed.

Indeed, illegal immigrants who commit crimes and are not removed are highly likely to commit additional crimes. The Judiciary
Committee of the U.S. House of Representatives found that 7,283 illegal immigrants who were not detained after a first arrest went on to be arrested on 16,226 charges, including 1,800 serious offenses such as murders and sex crimes.
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The combination of illegal status and the commission of a crime automatically should be enough for deportation; even those who are in our country legally should be deported if they commit serious offenses.

Since 1996, the federal government has been authorized to enter into agreements with state and local police to help enforce immigration laws.
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Federal authorities have deputized law enforcement authorities in more than half the states to check the immigration status of people arrested for serious crimes.
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Those programs should be available, along with adequate training, to every state or local entity that desires such an arrangement. Federal authorities should be obligated to initiate and prosecute deportation proceedings against any noncitizen immigrant, whether that person is here illegally or on a temporary visa, who has committed any violent crime, a serious property crime, or a serious crime involving fraud. Local governments and their residents bear the financial and human costs of such crimes. If the federal government is to have authority over immigration policy, it also must have the responsibility and obligation to enforce it. Greater
coordination between local and national agencies is essential to effective law enforcement.

States that share borders with other countries also should have the latitude to deploy National Guard units as necessary to enhance border security. Of course, any such state and local efforts must be subordinate to federal supervision and control. But if states and local governments believe that federal resources are inadequate to police their borders, they should be allowed to supplement those resources with their own.

Finally, states should be allowed to protect the integrity of the franchise with voter identification laws, which are supported by a large majority of Americans, including Hispanics.
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So long as states make it simple for citizens to obtain such forms of identification,
they should have the latitude to require such identification for voting or to secure welfare benefits. Again, some states will not create such requirements; but others will, and they have very strong justifications to do so. The U.S. Court of Appeals for the Ninth Circuit struck down Arizona’s voter ID law on the grounds that states may not add requirements to federal voting laws.
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The U.S. Supreme Court granted review in that case and likely will issue a ruling around the time this book goes to print. Regardless of the outcome, Congress can and should authorize states to create such identification requirements. Rather than bringing the weight of the federal government down on them for exercising the most basic attributes of state sovereignty, our federal immigration law should expressly recognize that central prerogative.

Although much of the attention on state-based immigration action has focused on Arizona and other states that have attempted to restrict benefits and ratchet up enforcement, Utah illustrates a different direction that some states might choose if given greater autonomy. In 2011, Utah enacted a package of laws calling for stricter enforcement of immigration laws, a guest-worker program to meet the state’s labor needs, and fines or work permits for unauthorized workers.
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Some of the measures are probably illegal under current federal law and U.S. Supreme Court precedents. But
Utah’s desire to travel a different road than the state to its south illustrates the desirability of giving states some flexibility in making adjustments to a one-size-fits-all immigration system.

We believe that giving states greater autonomy over immigration-related policies—not as an afterthought but as a core component of comprehensive immigration reform—could mark a significant breakthrough in the impasse over immigration policy. Likewise, replacing the adversarial relationship between the federal government and the states with a genuine partnership would make for far more effective immigration policy.

No comprehensive immigration plan can ignore the many millions of people living illegally in the United States. This is the issue on which the core values we discussed in the last chapter intersect most sharply: we need to treat those who have settled in our country illegally with compassion and sensitivity, yet without sacrificing the rule of law that is vital to our national fabric. The wholesale amnesty granted in the 1980s promoted the first of those values while abandoning the second, with the
all-too-predictable result that millions more illegal immigrants came into the country.

This time, we need to vindicate both core values. On one hand, we should try to put ourselves in the shoes of people who have entered the country illegally: they often faced impossible economic circumstances in their native countries, with a bleak future for themselves and their families, yet had no realistic process of immigrating lawfully to this country. On the other hand, allowing people to immigrate illegally without consequence while millions of others wait to enter through lawful means is manifestly unfair. Moreover, it creates a strong incentive for illegal immigration while sending a signal that we do not really value the rule of law.