Bhagwati in Foreign Affairs on Bottom-Up Immigration Reform

by Peter Spiro

Columbia University’s Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati’s delivery last week of the 2013 Emma Lazarus Lecture, co-sponsored by Columbia Law School and its School of International and Public Affairs. I was delighted to serve as a discussant for the lecture.

Bhagwati makes two basic points in the piece: that federal policy on undocumented immigrants is inhumane in an unfixable way, and that the more promising vehicle for advancing rights is through competition among the states. We should, in other words, give up on Washington and look to state capitals by way of moving forward on immigration reform.

Count me in. As Bhagwati points out (the reflexes of many immigrant advocates notwithstanding), the federal government, even under Democrat presidents, is capable of great cruelties when it comes to the treatment of undocumented aliens. The Obama Administration has deported a record number of non-citizens, many of them for trivial crimes. The Senate’s version of immigration reform includes a ridiculous increase (by almost everyone’s estimation) in the border security budget. Anyone assuming that comprehensive immigration reform will be friendly to immigrant interests has history to argue against.

The states, meanwhile, will see the error of their ways in treating undocumented immigrants badly. If undocumented immigrants feel unwelcome, they will leave for more hospitable jurisdictions. That by itself will harm a state’s economy — witness the crops left rotting on the vines in Alabama after it enacted the draconian HB 56 in 2011. But greater harm results from a tarnished brand. After Arizona enacted SB 1070, it lost tens of millions of dollars in convention and tourism dollars (Mexico issued a travel advisory cautioning against travel there). It can hardly help Alabama’s future efforts to attract big-ticket foreign investment after it locked up German and then Japanese auto manufacturing executives for possible violations of its law.

Hence the very real possibilities of “race to the top” federalism in the immigration context.

Even in the wake of the Supreme Court’s decision last year in Arizona v. United States, which gutted SB 1070, the states have room to differentiate their treatment of undocumented aliens. States can adopt their own sanctions regimes against those who employ undocumented workers. They are free to grant or deny in-state tuition to undocumented alien college students. They can grant or deny drivers licenses to the so-called childhood arrivals insulated from deportation as a matter of Obama administration policy. They can grant or deny other state public benefits to undocumented aliens. (The most recent example: whether an undocumented immigrant is eligible to practice law.) Finally, they can adopt (or not) the kind of “papers, please” measure that the Supreme Court upheld in the Arizona case.

But this discretion is mostly at the margins. For the states to play a central role in immigration reform, they’ll need more regulatory space. That will require federal activation. Devolving power to the states itself might grease the wheels to securing comprehensive immigration reform in Washington, allowing federal legislators to pass the buck downstairs.

Call it Bhagwati on steroids.

Congress could as part of comprehensive immigration reform explicitly allocate powers to the states in the realm of immigration. These allocations would not be subject to the constraints of Arizona v. United States, which considered state power only in the face of federal silence.

On the good side, states could be given a role in in the allocation of entry visas for permanent residence, to use or not to use. Some states want fewer immigrants (of any description) while others want more. The idea of region-based visas (see this piece in the Atlantic by Brandon Fuller and Sean Rust) has been floated by officials in Iowa, Michigan (think Detroit), and other depopulated jurisdictions. It has a proven track record in Canada and Australia, where provinces select immigrants. By allowing states to set their own immigration levels (and requiring immigrants to satisfy some period of residence in the selecting state) all preferences would be recognized, not just the lowest common denominator preferences. The overall level of politically acceptable admissions would go up.

Similarly, states could be given a role in the regularization of undocumented immigrants. That was a key element of the so-called Utah Compact, under which state, civic, and religious leaders united by way of moving forward in the absence of immigration reform at the federal level. States might also be afforded discretion with respect to enforcement. Chicago has refused to cooperate with the federal government’s Secure Communities program, an information-sharing programs which has resulted in the deportation of undocumented immigrants for minor crimes. California would have followed suit (with the TRUST Act) but for a veto from Governor Jerry Brown.

That’s the good — enabling immigrant-friendly states to roll out a more robust welcome mat.

Politically, the bad would have to be paired with the good. Congress has already afforded states discretion to take account of undocumented hiring in the business licensing context. The existing 287(g) program allows state and local law enforcement to partner with DHS for immigration enforcement purposes. On top of these Congress could in effect reverse Arizona v. United States by expressly authorizing independent enforcement of immigration law offenses under state law.

Authorizing restrictionist action on the part of the states could be a way of getting to yes on comprehensive immigration reform. Legislators with anti-immigrant constituencies would be better positioned to accept immigration reforms – that is, they would be better positioned to accept a massive legalization — if they secured a local option to be tough on illegal immigration within their jurisdictions.

Far better that kind of patchwork (an inherent feature of federalism) than a law that is tough all over — as in, tough in all jurisdictions (also far better than the current situation, in which 10-12 million individuals comprise a second-class caste). In the long run, in any case, few states will pursue anti-immigrant policies.

More subfederal jurisdictions are friend than foe when it comes to immigrants. During the debates over SB 1070, opponents were highlighted the unprecedented number of bills introduced in state houses relating to immigration – some fifteen hundred in 2011. But only about 250 of those were enacted, and the majority was protective of immigrants, dealing with immigrant education, healthcare benefits, human trafficking, and refugee assistance.

Where states do enact anti-immigrant policies, they are unsustainable over the long run. The costs of anti-immigrant policies are too high. If anti-immigrant jurisdictions are required to internalize the costs of anti-immigration policies, they are unlikely to stick with them. It’s just too expensive. And if anti-immigrant jurisdictions learn these lessons the hard way, they are unlikely to forget them.

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