The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Friday, May 05, 2006
Cinco de Mayo is as good a time as any to post my long-delayed thoughts on the illegal immigration issue. (I meant to do it on Monday, the day of the May 1 "day without an immigrant boycott/protests.)

There are approximately 11 million illegal aliens in the country. (I know the term isn't politically correct, but "undocumented worker" or "illegal immigrant" just doesn't accurately describe their status. They're foreign nationals -- aliens -- who are in the country illegally. Calling them "undocumented" suggests that there was just some sloppiness in processing paperwork, and "immigrants," to me, connotes regular, legal immigration, with an understanding that their presence will be permanent.)

It would be very difficult to deport them all. In addition to the practical difficulties and the expansion of government power that would be required, it would probably cause a major shock to the economy. In addition, it could be argued that it wouldn't be fair to those here illegally. True, they violated the law in coming here (and, typically, in forging documentation to indicate eligibility to work). But the government has made virtually no serious effort to enforce the laws they violated. Illegal aliens may be said to have a reasonable expectation that the same benign (from their perspective, at least) neglect will continue.

In civil law, there's a concept known as "adverse possession," under which a person who does not own property, if he occupies it openly for a certain period without the true owner taking steps to end the unlawful possession, can obtain title to the property. A related concept is that of the statute of limitations, where a person must act to enforce his rights within a certain time or waive the right to enforce them. The idea is that allowing people to "sleep on their rights" and bring up old claims long after they accrue would cause disruption and uncertainty, by leading people to expect to be let alone and then going after them.

So I think that people who have been in the country for a long enough period -- say, five years or more -- ought to be given some process by which they can apply for legal residency. There are some problems with this approach -- it may unfairly benefit the illegal aliens who have jumped to the head of the line, and how do we determine whether someone's been here for five years, for example?

The key would be that any kind of new regularization process must be coupled with effective enforcement of the law going forward. Previous amnesties or regularizations have appeared only to encourage further waves of migration by people hoping to get legal residency in the next amnesty.

Start with a border barrier -- a real one, not a "virtual" one. I'm sorry if that makes Mexico feel bad -- it should, having failed to organize its society in a way that can provide for its own. Mexico needs to clean its own house before it makes demands on the United States. Even if it can't get its legendary corruption under control, it can start by giving Americans access to the Mexican economy (where they can't presently own property or work) as Mexicans have to the American economy. That would go a long way towards equalizing the labor/capital imbalance that draws Mexico's surplus labor north. Allowing the imbalance to be balanced by a mutual, rather than a one-sided, flow of labor and capital will also reduce the inefficiencies involved in taking people out of their linguistic and cultural environment and forcing them to adapt to life in a foreign country (although that inefficiency is probably shrinking as much of the United States is becoming Latinized)

And don't tell me we can't put up thousands of miles of fence -- we've built thousands of miles of highway, and a fence is a lot cheaper.

Second, establish a more foolproof and convenient method of checking people's eligibility to work. The Social Security card's technology hasn't changed since the '30s. How hard can it be to make the card electronic, like a credit card? Set it up so the employer can swipe the card and check it against a database. Set up a system to deal with the inevitable glitches. (And hire some people with higher IQs than DMV workers to staff it.) Restrict dramatically the number of documents that can be used to establish identity and eligibility to work, requiring a showing of good cause to use other documents than the most common and most easily checked.

It's asked rhetorically why we don't just turn verification over to American Express. I'm presently litigating a couple of credit-reporting cases, in which mistakes by creditors may have caused damage to consumers, so obviously mistakes do happen. But that's no excuse to write off verification altogether, especially if we work to make the system as foolproof as humanly possible.

Finally, although I obviously wouldn't want to go around randomly deporting people, I think there's a strong case to be made for having local police check the status of people they arrest in the course of ordinary law enforcement. My native Costa Mesa has attracted a lot of grief for having its police refer illegal aliens arrested for certain crimes to the INS. I think it's an excellent idea. I know an arrest doesn't automatically mean a person is guilty -- but since a person can only be arrested on probable cause, a person arrested has generally conducted himself in such a way as to draw attention to himself. If you're here illegally (and you're not eligible to stay under a regularization program), you ought to keep your nose cleaner than everyone else. Otherwise, the effect is that police would have to be closing their eyes to more-or-less obvious violations of immigration law, which can't have a positive effect on respect for the rule of law.

The problem with the present wink-and-nod system (totally aside from the strain that effectively-unregulated immigration places on the social and physical infrastructure) is that it basically penalizes people who want to obey the law. When there's no enforcement, the only compliance is voluntary. And when there's an economic advantage in violating the law (as cheap illegal labor often gives), non-enforcement rewards the most dishonest. That is a step in the direction of the corruption that helps drive Mexicans here in the first place.