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Open Borders or Racism: a False Dichotomy

27 Thursday Jun 2019

Posted by in Immigration, racism

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What are you, a racist? To avoid that charge, apparently you must support fully open borders with absolutely no restrictions on crossings. The basis of that bizarre claim is that most immigrants are not of the ethnic majority, or rather most illegal immigrants are not of the ethnic majority. Thus, if you favor border controls of any kind, you must hate ethnic minorities. You are a racist! This hasty generalization is commonly made by reactionary minions of the Left, and it is standard rhetoric of leftist propaganda.

As many have noted, the U.S. benefitted for many years from a relatively liberal immigration regime, but policy became increasingly restrictive over a period of six or seven decades starting in the 1870s, sometimes in ways that were racially motivated. A few reforms began to take place in the 1940s, though various quotas remained a fixture. More recently, the threat of terrorism prompted restrictions, and the large population of illegal immigrants in the country, including immigrant children, stimulated debate over deportation vs. a path to citizenship.

Disparate Impacts

A real outcome of border controls takes the form of a “disparate impact”, a phenomenon prominent in areas of the law such as employment, fair lending, and fair housing. For example, standards like degree requirements or minimum credit scores tend to disqualify minority or “protected class” applicants disproportionately. Those standards, however, are not targeted explicitly at any class of individuals. Likewise, minorities represent a disproportionate share of those disqualified under immigration quotas. And minorities represent a vastly disproportionate share of illegal entrants apprehended by ICE because, as a practical matter, most border controls are targeted at country of origin, but not at specific minorities. Almost all illegal U.S. immigrants are members of populations that are ethnic minorities within the U.S. The top 10 countries of birth for all U.S. immigrants also have predominantly Hispanic or Asian population. These countries accounted for roughly 57% of legal immigrants in 2017.

The courts have generally ruled that business standards having a disparate impact are defensible based on business necessity and the absence of effective alternatives having less disparate impact. So the issue here is whether border controls meet a compelling need having nothing to do with racial or ethnic preferences, and whether any adverse impact on protected classes can be minimized.

The simple fact is that most Americans opposing illegal immigration simply want those entrants to go through a liberalized legal process, which would of course reduce the disparate impact of tight border controls. So the worst that can be said about a preference for legal over illegal immigration is that it might have a disparate impact on prospective minority entrants, and that is uncertain under a liberalized regime of legal immigration. This preference is not racist, and it is not racist to demand that all entrants be vetted and identified, whether you believe it is economically sensible or that immigrants are more or less likely to engage in criminal or even terrorist activity.

Public Resources

Again, there are strong rationales for controlling immigration and enforcing the border that have nothing to do with racial preference. Borders are a critical aspect of national sovereignty, of course, including taxpayer sovereignty. There is no question that large numbers of immigrants strain scarce public resources in a variety of ways including public aid, education, law enforcement, housing, and other public services. In fact, the mere existence of aid programs provides incentives that encourage immigration, especially as activists push for broader accessibility of program benefits. The consequent strain on public resources escalates costs to taxpayers and compromises the quality of public programs for the qualified citizen-beneficiaries for whom they are intended. There is nothing racist about asserting that those strains should be minimized for the benefit of taxpayers and beneficiaries. Indeed, a recent poll found that a majority of Hispanics favor controls on immigration, including a border wall.

A further consequence is that citizens might perceive an unhealthy opportunism or exploitation by illegal immigrants availing themselves of what might seem like very generous public benefits. Rightly or wrongly, that perception tends to encourage forms of “otherism”. This is an example of how public policy can undermine social cohesion and the successful assimilation of immigrants.

The Labor Force

In general, immigration is a positive economic force. At a macro level, it supplements the growth of the labor force, traditionally a major driver of output gains. At the more fundamental micro level, it represents a movement of productive resources in response to incentives guiding them to higher-valued uses. The most productive workers tend to migrate away from low-wage economies toward high-wage economies. Again, however, low-productivity workers are attracted by the bundle of public benefits available, including our minimum wage laws. Those immigrants do not contribute to output gains at all if their productivity is less than the minimum wage. They will, however, attempt to compete for jobs at the minimum wage or even below that wage if their employers are willing to cheat.

Obviously, the legal minimum wage does not adjust to market conditions such as excess supplies of labor. The development of such a surplus would mean unemployment, including job losses among low-skilled legal residents. That is unfortunate not just for those losing jobs, but because these effects create more fertile ground for racism among both groups. This is another example of how public policy can create barriers to social cohesion.

So Who’s a Racist, Anyway?

Those casting aspersions of racism are often guilty of of losing historical perspective, and sometimes worse. A recent example is the refusal of democrats to deal with “the racist” Trump on the DACA bill he proposed in early 2018. That bill would have offered amnesty and a path to citizenship for 1.8 million Dreamers, individuals who arrived in the U.S. as undocumented child immigrants. How easy it is for progressives to forget that President Obama dithered away four years during which he could have proposed legislation to end the prosecution of Dreamers.

A more cogent example of selective memory among progressives is the history of the Democrat Party as one of racism, Jim Crow, and eugenics. The contention that the Republican Party has a history of racism is categorically false. We constantly hear that Republicans are guilty of using “dog whistles” to appeal to racist sentiment, but Mark Steyn provides a marvelous quote of James Taranto in which he gets at the truth of these divisive claims: “… if you can hear the whistle, you’re the dog.” There is great truth in that statement.

No one should forget that immigrants attempting to enter the country illegally are exposed to real dangers, and it should be discouraged. Natural conditions are harsh along the southern U.S. border, and many of those wishing to cross must contract for the services of guides who are often dangerous and untrustworthy. The risks for families and children should not be trivialized by those who would encourage massive flows of illegal entrants as a tool of policy change.

Border security is important to Americans because of the risks inherent in an uncontrolled border. These risks span national security, drug policy, taxpayer sovereignty, and other economic concerns. While racists might hate most immigrants, opposition to illegal immigration is often paired with support for liberalized legal immigration. That fact does not square with accusations of racism. Perhaps most importantly, encouraging an uncontrolled flow of immigrants in defiance of existing law creates harsh risks for the immigrants themselves, and especially the children who become innocent human collateral in the process. That the same shortsighted individuals who encourage such flows make a blanket charge of racism against those who demand a more rational and even liberalized process is grotesque and an affront to decency.

Exposing Children To Risk at the Border

19 Tuesday Jun 2018

Posted by in Immigration

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Unaccompanied children (UACs) will be housed in temporary quarters at the border even in the wake of President Trump’s new executive order intended to end family separations. That order began the process of reuniting children and parents that were separated under the Administration’s earlier effort to discourage the recent deluge of illegal immigrants claiming asylum. But UACs were the original subject of the so-called Flores Consent Decree in 1997, which limited the length of a minor’s stay in a holding facility to 20 days before placement with a relative, other guardian, or foster shelter. Soon after, the decree was extended to accompanied children by a federal court.

There is no doubt that all of these minors are much safer in holding facilities than during their dangerous attempts to cross the border through rough, arid country, and perhaps over the Rio Grande. That seems rather obvious, and the geography isn’t the worst of it: UAC’s are highly likely to become victims of human trafficking, which runs rampant along the U.S.-Mexican border.

UACs have already separated from their families, deliberately or otherwise, before their journey north. But a family embarking on such an odyssey is likewise exposed to tremendous danger from physical hazards and criminal predation, and the children are more likely to be young. If detained by U.S. border security, they might be about as safe or safer in custody than they’ve ever been, given the lawlessness at many points of departure in Central America.

For these and other reasons, whether children should ever be separated from parent(s), or someone claiming to be a parent(s), is not as straightforward as many have suggested. The recent outrage over the treatment of immigrant children at the border is based on a number of misapprehensions. I attempt to address some of these in the points below:

>>Prior to President Trump’s executive order last week ending family separations, 10,000 (more than 80%) of the children housed by the U.S. government at the border were actually UACs, separated from their families before their journeys ever began, not after apprehension at the border. Most but not all of these kids are teenagers delivered into the hands of smugglers, who sometimes collect a premium on their charges via misuse and sexual abuse. Here is part of a statement from Kristjen Nielsen, Secretary of Homeland Security:

“The vast, vast majority of children who are in the care of HHS right now, 10,000 of the 12,000, were sent here alone by their parents. That’s when they were separated. So somehow we’ve conflated everything but there’s two separate issues. 10,000 of those currently in custody were sent by their parents with strangers to undertake a completely dangerous and deadly travel alone.“

>>2,000 (less than 20%) of the children housed by HHS were separated from their parents when the parents claimed asylum after attempting to cross illegally. However, a consequential share of those children were not biologically related to the supposed parents after all; some UACs are used by coyotes to pose as the children of adult immigrants, and vice versa, so that they all gain more favorable treatment if apprehended.

>>The ranks of “asylum seekers” have swollen by attempts to migrate for economic reasons. A preference for an illegal crossing is presumptive evidence that this is the case. Here is more from Nielsen:

“… in the last three months we’ve seen illegal immigration on our southern border exceed 50,000 people each month, multiples over each month last year. Since this time last year, there has been a 325 percent increase in unaccompanied alien children and a 435 percent increase in family units entering the country illegally. …Over the last ten years, there has been a 1700 percent increase in asylum claims, resulting in asylum backlog of 600,000 cases.“

>>Enforcing the Flores Consent Decree makes it almost impossible to meet the goals of 1) properly adjudicating an asylum claim by a parent detained after an illegal crossing, and 2) keeping the family together. As a result, before April of this year, prior to the Trump Administration’s effort to discourage frivolous claims, the reality was that most “credible fear” asylum claims at the border resulted in the immediate release of families.

>>Many of the separated children arrived with single parents, including female children with fathers. In fact, most illegal immigrants are male and mostly unaccompanied by children. Ensuring the safety of children is a challenge in any detention environment. Here is what Human Rights Watch‘s 1999 Report on Children’s Rights had to say on the matter:

“Despite the directive of Article 37(c) of the Convention on the Rights of the Child that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so,” children continued to be held with adults in many parts of the world. Human Rights Watch opposed the commingling of children and adults in detention because contact with adults was almost never in the children’s best interest. Children in adult facilities rarely received educational and vocational training appropriate to their needs. detention because contact with adults was almost never in the children’s best interest. Children in adult facilities rarely received educational and vocational training appropriate to their needs.”

None of this is easy. It is arguably prudent and in a child’s best interest to keep them housed separately from adults. The unfortunate reality is that the recent surge of illegal entrants cited by HSA Secretary Nielsen has placed a strain on existing facilities. However, assuming that family relationships can be verified, the designation of facilities for families-only would offer an alternative that has been lacking.

>>Ultimately, the border control separated detained “parents” from children at the volition of the parents. The parents were offered the opportunity to take their children back across the border, where they could head to an official port-of-entry to claim asylum. Of course, an asylum claim after an illegal crossing involves a lengthy delay. (And an attempt to re-enter illegally is a felony, which would all but guarantee separation.) Under Trump’s policy, if the parents refused to go back in the first instance, claiming asylum immediately, they were separated from their children until their cases were adjudicated. But after 20 days, the children must be transferred to a foster shelter, relative, or family friend in the U.S.

>>Legitimate asylum-seekers have alternatives to risky illegal crossings. They should go to a port of entry to claim asylum, not expose their children to a long, hazardous slog through the marchland. And many do, as this article makes clear. There are 50 ports-of-entry along the U.S. Mexican border.

>>The claim that UACs and children separated from their apparent guardians were mistreated has been accepted uncritically by the media. The shelters run by the Department of Health and Human Services (HHS) are not Auschitz, but you’d ever know it from listening to many news sources. The immigrants are provided with food, medical care and sanitary conditions far better than they may have ever experienced. References to Nazi Germany and the Holocaust are so shockingly off-base as to constitute a denial of the seriousness of the Holocaust.

>>The U.S. government is within its powers to regulate immigration, according to the Supreme Court’s ruling in Chy Lung v. Freeman (1875). That decision turned on the Article 1 Commerce Clause, which gives Congress the power to regulate commerce with foreign nations. The Court ruled that this applies to immigration, a practical solution to the conflicting and sometimes highly restrictive state regulations on immigration in place at the time.

My position is that U.S. citizens hold the right to freedom of association, which includes the right to exclude. In that sense, citizenship is a “club good”. Yes, such legal exclusions are binding on citizens who disagree, like most other laws, unless they emigrate, but such a policy does not prohibit travel abroad, foreign travelers, and guest workers. Immigration controls should be calibrated such that inflows meet the country’s economic needs and do not place an undue burden on public finances. I also support generous allowances for legitimate asylum seekers, subject to vetting. As for the surge in the number of immigrant families detained by border control, more facilities that are specifically designed to house families may be required. Finally, Congress must find a compromise to the issues of Deferred Action on Childhood Arrivals (DACA), border security, and eliminating the Flores Decree. There are avenues for a compromise solution, but raw political motives seem to be keeping Democrats away from the table.

An Immigration Reform Dream: What’s Trump’s Price?

08 Friday Sep 2017

Posted by in Executive Authority, Immigration

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Two major issues weigh on critics and supporters of President Trump’s rescission of DACA, President Obama’s 2012 executive order establishing the Deferred Action on Childhood Arrivals program. First is the treatment of individuals who entered the U.S. illegally prior to mid-2007 at less than 16 years of age (and who were 30 or younger in 2012). Under Trump’s new order, these individuals would be subject to deportation in March 2018 or later, depending on their remaining DACA eligibility and the status of any renewal application already filed by then.

As an isolated question, draconian treatment of so-called “Dreamers” (taken from the “Dream Act”, which never made it through Congress) is difficult to justify. These individuals did not arrive here by choice or through any fault of their own, and the vast majority are now productive members of society. The problem, however, is the usual argument against amnesty: it creates an incentive for would-be immigrants to circumvent the legal immigration process in the hope of later forgiveness. If children of illegals are subject to lenient treatment once in the U.S., it probably magnifies that incentive. While some take a hard line with respect to deporting today’s Dreamers, many critics of DACA are strongly sympathetic to their plight.

The second issue defines another basis for opposition to DACA: the questionable legality of Obama’s original order. Obama issued another executive order in 2014 that essentially expanded DACA. That later order, already rescinded by Trump in June, was likely to be overturned by the Supreme Court. This article quotes from the majority opinion of the U.S. Fifth Circuit Court of Appeals:

“The administration’s interpretation of the Immigration and Naturalization Act, [5th Circuit Judge] Smith wrote, would effectively vest the Secretary of Homeland Security with the power ‘to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.’ In other words, Smith wrote, ‘the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’“

The key here is the clause “making them newly eligible for a host of federal and state benefits” without proper legislative authorization. In other words, Obama exceeded his authority. The original DACA order suffers from the same defect as the extension, and it was likely to be challenged as well. However, Ilya Somin has defended DACA as a matter of “prosecutorial discretion”, which was Obama’s original rationale for not enforcing immigration law for Dreamers. (But there is suspicion that the likelihood of adding to Democrat voter rolls appealed to Obama.) Enforcement against the children of illegal immigrants, Somin contends, is simply bad policy of the sort routinely avoided by prosecutors. In 2013, Zachary Price addressed this defense of DACA, including the application of earlier statutes specifically allowing discretion in immigration enforcement (also see this post by Michael Ramsey):

“The immigration [DACA] policy, in contrast, provides a more definite and specific guarantee of non-enforcement to a broad category of undocumented immigrants who fall squarely within the scope of removal statutes. … It’s worth noting (as some folks have helpfully pointed out to me) that the Obama Administration has maintained vigorous enforcement with respect to other groups of undocumented immigrants. But DACA goes beyond simply turning a blind eye to their unlawful presence in the country. It effectively grants a form of lawful status not contemplated by the applicable statutes through an exercise of prosecutorial discretion.

It’s true that there is a history to the practice of deferred action. Although this form of relief originated in executive practice, it’s now mentioned in several statutes, so to some degree at least Congress may have ratified it. … Yet the practice (as I understand it) originated as a form of case-by-case humanitarian relief. While immigration officials have used it categorically a few times in the past (for instance, to grant relief to immigrant students affected by Hurricane Katrina), I’m not aware of it ever being used for as broad and significant a group of immigrants as in the DACA program. So I think it’s hard to claim that there’s been even an implicit ratification of the practice sufficient to support the DACA program.“

Legislative action — a new attempt at some kind of Dream Act — could resolve the dilemma faced by Dreamers and their defenders while avoiding the legal objections to unrestrained executive authority. It’s likely that Trump is willing to exchange a continuation of the DACA regime, or even complete amnesty for Dreamers, to achieve other priorities, such as funding for his ballyhooed border wall. One could accuse Trump of using the Dreamers as pawns — why else would he have agreed to a grace period of six months? And why did he say, subsequently, that he would “revisit DACA” if Congress failed to act? That might give him some leverage with those who oppose DACA on the legal grounds discussed above, but it might undermine his ability to cut a deal for the wall or any other priority with Democrats.

David Harsanyi writes in The Federalist that “Rescinding DACA Is the Right Thing To Do“:

“If there’s one thing that exemplified Obama’s administration, it was its embrace of executive unilateralism. No administration in memory was stopped more often by courts on this front—often by unanimous Supreme Court decisions. … The Constitution makes no allowance for the president to write law ‘if Congress doesn’t act.’“

Somin notes that rescinding DACA, and even passing a law in this case, will do nothing to prevent this and future presidents from exercising excessive authority. That’s certainly true, but rectifying a case in which that authority was exceeded, along with recognition of the constitutional limits on executive authority, is worthwhile.

Congress should pass legislation offering relief to the Dreamers. In a best case scenario, new legislation would provide them with a clear path to citizenship, and it would also reform existing immigration law to allow for greater flows of immigrants through the legal process. Those provisions might come at the cost of building a wall, as well as funds for tougher immigration enforcement. And Trump has made merit-based criteria for issuing green cards and accepting immigrants a priority. That’s fine as long as: 1) “merit” is defined partly by economic needs, such as low-skilled farm labor; and 2) there is some sort of navigable process for refugees.

While the prospect of allowing Dreamers to be used as political pawns might be repugnant, the end result could be worthwhile. And we shouldn’t forget that some of those Dreamers, as children, were probably used as pawns by the very parents who brought them here.