The Pity Party (11 page)

Political scientist Joseph Carens takes a more tempered view of the question than Yglesias or, if the Mexican Migration Project survey is to be believed, most Mexicans. A professor at the University of Toronto, Carens brings his own dual citizenship, Canadian and American, to the subject. His position is that nations have a clear right to keep foreigners out, but only a qualified right to kick them out. The qualification is that however foreigners got into a country, they cease to
be
foreigners after some time spent residing in that new country, and deserve the legal and social status of natives, from whom they have become practically and morally indistinguishable.

The moral right of states to apprehend and deport irregular migrants erodes with the passage of time. As irregular migrants become more and more settled, their membership in society grows in moral importance, and the fact that they settled without authorization becomes correspondingly less relevant. At some point a threshold is crossed, and irregular migrants acquire a moral claim to have their actual social membership legally recognized.
³⁰

Inescapably, Carens's framework yields an arbitrary determination of
the
point in the duration of an irregular migrant's stay in a new country when his moral claim to remain there finally trumps its government's right to apprehend and deport him. Carens thinks that “five years of settled residence without any criminal convictions should normally be sufficient to establish anyone as a responsible member of society,” but considers it “plausible” that “a year or two is not long enough.” How quickly the state's right to apprehend and deport erodes between the start of an irregular migrant's third year in a new country and the end of his fifth year is left unexplained.
³¹

A nation that forswears a right to kick out illegal immigrants, however, is going to have a harder time keeping them out in the first place. If we follow Carens by recognizing and respecting the irregular migrant's presence as a fait accompli, we make it a good deal harder to tell prospective migrants they should be regular rather than irregular ones. The disincentives to violate a nation's immigration laws are significantly reduced by the assurance that after five (or fewer) years your transgression will be expunged from the historical record. Meanwhile the disadvantages to obeying those laws, waiting patiently to emigrate until and unless the host country lets you in, remain the same.

We should not be surprised if people adjust their behavior accordingly. Suppose Professor Carens tells his students that their term papers are due on May 1, and that those assignments handed in late will be marked down. Come May 1, half the class pleads for an extension, and Carens obligingly tells them that because he realizes how busy his students are he'll agree to accept late papers whenever they're submitted, and won't impose a penalty after all. We can safely predict that, once it becomes known through the campus grapevine that Carens is one of those instructors who never really enforces any due date,
none
of his students will turn their work in on time. We can also predict that, until this de facto policy becomes universally understood, those students who pull all-nighters because they took his deadlines seriously will feel like idiots for having believed him in the first place.

Carens doesn't see a problem. As long as they have to wait some number of years before the government relinquishes any right to deport them, irregular migrants will be living with a sword hanging over their heads, which is penalty enough. (Students' fears that their late term papers were
going
to be penalized are, by this logic, an adequate equivalent to an actual penalty.) Carens goes on, however, to advocate turning the sword irregular migrants must live under into a butter knife. He is “wary of efforts to criminalize actions that irregular migrants take simply to live ordinary lives,” such as “identity theft and the use of false documentation.” Enforcing such laws against irregular migrants, unless they're using them for some illegal purpose apart from staying in the country they migrated to irregularly, is “an abuse of the legal process.” Prohibit the government from committing such abuses, however, and the irregular migrant's fraught life in the shadows becomes far less shadowy, making it relatively feasible and congenial to stay in the country he entered irregularly while the clock ticks down to the day when the government must abandon all efforts to deport him.
³²

As for the unfairness of his recommendations to regular migrants, Carens says that because countries such as the United States and Canada make almost no provision for unskilled workers to immigrate legally, leniency to irregular migrants does not penalize anyone else. The irregulars are not cutting ahead of those in the queue—there is no queue because there are no regulars. But this assertion sounds like an argument to change our immigration laws rather than to curtail the enforcement of the existing laws. And if we did change them there
would
be a queue, turning the moral problem Carens evades into a tangible difficulty. Furthermore, if the absence of legal pathways for foreigners to reside and work in America justifies curtailing and putting an expiration date on enforcing immigration laws, then Carens is, as a practical matter, closer to the open-borders position of Yglesias, despite stipulating that he doesn't deny “a government's moral and legal right to prevent entry in the first place.”
³³

There's another difficulty. While allowing that states have the
right
to control immigration, Carens never acknowledges any reason they would
want
to do so. It remains a purely formal prerogative, in contrast to his detailed, lyrical case for the principle that people “who live and work and raise their families in a society become members, whatever their legal status.” Irregular migrants “sink deep roots” as

connections grow: to spouses and partners, sons and daughters, friends and neighbors and fellow-workers, people we love and people we hate. Experiences accumulate: birthdays and braces, tones of voice and senses of humor, public parks and corner stores, the shape of the streets and the way the sun shines through the leaves, the smell of flowers and the sounds of local accents, the look of the stars and the taste of the air—all that gives life its purpose and texture.
³⁴

One of Carens's critics was law professor Carol Swain, that most troublesome of political figures, a black conservative. She does see a reason for America to enact and enforce immigration laws: to protect the economic prospects of the “most vulnerable” Americans, “U.S.-born blacks and Hispanics with high school educations or less” from whom “the unknown millions who are in the country illegally . . . have taken jobs and opportunities to which they were not entitled.” Swain cites studies showing that native-born American workers with college degrees have lower unemployment rates than college-educated immigrants, but those without high school degrees have higher unemployment rates than their immigrant counterparts—in the case of native-born blacks, rates more than twice as high. She reverses Carens's moral timetable, suggesting that the illegal immigrants who have been in the United States the longest are the ones
most
deserving of deportation, since their presence is a “form of theft,” of limited jobs and public resources, and those who arrived earliest have stolen the most. “I have a dream of one day living in a society where elites apply the compassion offered illegal immigrants to their fellow citizens. . . .”
³⁵

Hell hath no grievance like a white liberal accused of callousness by a black conservative. The political effect of Swain's argument, Carens asserted, is to divide “disadvantaged groups and [set] them against one another instead of building alliances to promote their common interests.” Their common interests are, simply, the liberal domestic agenda: “extending health care, improving education, and expanding economic opportunities for all Americans”—native-born and migrant, regular and irregular. The problem of irregular migrants competing against native-born Americans in the labor market can be solved, Carens says, by making both groups eligible for union membership and minimum wage laws, thereby preventing employers from realizing the benefits of cheaper labor costs when more workers bid down the price needed to hire. And for Swain to echo the “I Have a Dream” speech “is to make a mockery of [Martin Luther] King's commitment to social justice for all. Can anyone doubt where King would stand on [the legal status of irregular migrants], if he were alive today?”
³⁶

In fact, one can doubt it. In 1991, when Congress was considering legislation to weaken sanctions against employers who hired illegal immigrants, a letter to Senator Orrin Hatch from the Black Leadership Forum, an umbrella group of civil rights organizations, made many of the same points Swain did. It argued that a policy making it easier for illegal immigrants to find and keep jobs would “add to competition for scarce jobs and drive down wages,” thereby “undercutting . . . American jobs and living standards.” It would, moreover, “inevitably add to our social problems and place an unfair burden on the poor in the cities in which most new immigrants cluster.” The letter's lead signatory was Coretta Scott King, the civil rights leader's widow.
³⁷

The Black Leadership Forum did agree with Carens on the need to achieve social justice by enacting the liberal agenda—make welfare state programs more numerous and generous, while strengthening protections for workers with regulations that increase the minimum wage and favor labor unions. The adequacy of this position is doubtful. Raising the price for something, the way minimum wage laws raise the price for entry-level labor, usually increases the supply of it while reducing the demand. This policy tends, therefore, to decrease the number of jobs paying the minimum wage by giving employers an incentive to substitute capital, often in the form of new technology, for labor that has been made artificially expensive. Furthermore, widening the gap between the wages paid in Mexico and those paid in America would make it harder for Mexicans to get, but better for them to have, a job in America. “Surely raising wages for unskilled work would lure even more immigrants to the United States, just as it has lured them to Western Europe,” sociologist Christopher Jencks argued in 2002. “And if employers prefer unskilled immigrants to the unskilled natives who currently apply for $6-an-hour jobs, why would these employers' preferences change when they had to pay $9 an hour?”
³⁸
As an alternative to enforcing immigration laws vigorously rather than perfunctorily, Carens's solution will result in diminished economic opportunities for more native-born Americans, who can console themselves with the thought of the higher wages they might be earning if they weren't unemployed. And the salve for
that
wound, in the words of Mickey Kaus, will certainly turn out to be handling the “distributional and social effects of open borders” with “a bigger web of government income transfers, social provision of benefits, training, and counseling.”
³⁹

According to Carens, we need to enforce the “human, civil, and economic rights to which all irregular migrants are legally and morally entitled.”
⁴⁰
He makes clear that the “all” includes the recently arrived irregular migrants, those not yet in a new country long enough for the government to have renounced its right to deport them. They'll be free to claim their rights without fear of deportation because a “firewall” will separate immigration enforcement from all other government functions. It's not clear whether the rights to which they're morally entitled also include enrollment in the host nation's welfare state programs. If so, the Mpinga dilemma has been addressed, though at this point it would be easier, in terms of both formulating and implementing a solution, to simply allow poor people in Oaxaca and Kinshasa to enroll in Medicaid and Head Start directly, without requiring them to first make long, difficult trips to the United States to collect their benefits. If, on the other hand, we cruelly exclude irregular migrants from our domestic programs, then we'll confine the welfare state to regular migrants and the native-born, who will need more of its help by virtue of competing with larger numbers of irregular migrants for jobs and housing.

The policy of inoculating people from economic and social dislocations is consistent with the logic of a poverty researcher's statement to the
New York Times
in 1998: “Idaho has effectively made itself the worst place in the nation to be poor.” It had done so, the article makes clear, by taking a hard right turn politically, reducing its “welfare rolls by 77 percent, the steepest cut in the nation.” What makes a state a bad place to be poor, then, is a stingy, stigmatizing welfare state instead of a generous, nonjudgmental one.
⁴¹

By implication, the goal—really,
the
goal—of governance is for each state to aspire to be the best place in the nation to be poor, and for each nation to aspire to be the best place in the world. That liberal goal does not necessarily need to be understood in liberal terms, however. For conservatives, a good place to be poor is one where, by virtue of its dynamic economy and proliferating opportunities, those in poverty who are also capable and motivated have excellent prospects to be poor
briefly
. Mpinga Bomboku's family is not destitute because their country's government is insufficiently generous, but because DRC's economy is insufficiently prosperous. Generosity requires wealth to be generous
with
. Even if we agree with Hubert Humphrey that the moral test of government is how well it takes care of the young, old, and needy, prosperity is the practical test we must meet prior to engaging the moral challenge.