A Few Thoughts on Immigration Reform (R.I.P.)

The chance for major immigration reform during this session of Congress has apparently passed, according to this Reuters item here and an editorial in yesterday’s Times. Although I teach and write in immigration law, I have found this year’s high-profile debate on the subject pretty unedifying.

This is in part because it has been mostly about politics rather than law. The politics may be unpredictable, with positions that cut deeply across party lines, but they are also enveloped in unreality – the unreality of controlling immigration. As Tamar Jacoby (a perceptive centrist in an area that could use quite a few more) points out in a recent Washington Post column, it’s rather like Prohibition. Writing in the January-February 2003 issue of Foreign Affairs, Jagdish Bhagwati observes that “the ability to control migration has shrunk as the desire to do so has increased. The reality is that borders are beyond control and little can be done to really cut down on immigration. The societies of developed countries will simply not allow it,” in the face of immigrant rights activism and ethnic politics (to which one might add economic imperatives, as reflected in the Wall Street Journal’s position on the issue).

The idea that illegal immigration is going to be shut down by some bold legislative stroke or grand bargain is fiction. And yet that assumption seems to underlie most of the policy positions on immigration, whether they provide for amnesty or not.

Not that I have an answer. Open borders is morally appealing, but that’s obviously not going to be politically plausible anytime soon — and in that way it’s not like Prohibition, which of course was simply repealed. (It’s also unlike Prohibition insofar as it has created a huge population of legally subordinated individuals, a caste-generating regime that defies consensus notions of liberal equality.) That leaves the “managing migration” approach, with guest workers programs at their center. But that option hasn’t had much success in recent times, either, at least not insofar as it assumes that such workers really will go home once their legal gigs here are up. Perhaps any reasonable deal which legalizes a large number of undocumented is the best one can hope for, to be repeated as necessary into the future. If guest workers end up staying, we can deal with that problem later, too.

In the meantime, I’m amazed by the how some progressives line up against immigration and immigrants. Here’s Mickey Kaus observing that Mexican immigrants have “non-crazy grounds for challenging the very constitution of the U.S. within its current borders,” by virtue of their long-ago sovereignty over the American southwest. Even more incendiary is this column in the Atlantic from Jack Beatty, an otherwise reasonable person who apparently also buys into the specter of a “reconquista” in pretty much the same terms as we hear it from the out-of-the-mainstream Federation of Americans for Immigration Reform (check out this scare piece on “Chicano Nationalism, Revanchism, and the Aztlan Myth“). Samuel Huntington’s book, “Who Are We,” paints an similarly unconvincing picture of cultural decline brought on by Mexican immigration (although the book is quite good on theories of national identity apart from the particularities of this American moment).

The problem with all of these arguments is that whatever Mexico and Mexicans stand for, it’s not that different from where the existing community of Americans is; and to the extent that they are different (the fact that they speak Spanish, obviously, or that they are newcomers to democratic politics), their presence just doesn’t pose that much of a real threat. They’re not here to conquer, they’re here to make a better life for themselves.