The Limits of Immigration Enforcement
Series: Welcome the Stranger
For audio, click here: https://drive.google.com/file/d/1YHIjIONkwShIIKO1iT6DJFfv5u85ug8V/view?usp=sharing
In the last post, I described the difficult dilemma in which Americans find themselves. Americans want to treat immigrants decently, notably by passing the DREAM Act, and to respect their human rights. But if we do treat immigrants decently, we’ll incentivize far more immigrants to come.
At the time of writing, President Biden recently announced a harsh new immigration order, an attempt to close the southern border if crossings exceed 2,500 per day. They have consistently exceeded that for years, reflecting a strong US economy, an increasingly dangerous world, and a perception that the Biden administration is relatively humane and may sometimes do something nice for immigrants. It sometimes has, e.g., it created Temporary Protected Status (TPS) to grant a temporary right to work to some undocumented immigrants from Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen, most of which are war-torn and all of which are afflicted by some combination of war, gang violence, government repression, natural disaster and/or economic crisis, such that any asylum claim ought presumptively to be accepted. Also, while ICE under the Biden administration has deported hundreds of thousands of people, which is a terrible thing, this is still actually a lot fewer deportations than were perpetrated by previous administrations. Biden is behind in the polls on immigration, and widely blamed for the surge in border crossings.
Biden’s hard-line turn is widely recognized as an election-year ploy by an incumbent trailing in the polls. Legal challenges are expected, with legal critics saying the order violates existing laws about people's right to seek asylum. Asylum seekers are regularly released back into the population, awaiting court dates that are delayed by years. In the meantime, though most, apart from the beneficiaries of TPS mentioned above, enjoy no official right to work, many doubtless manage to work under the table, and to be better off than at home. Any children born to them are US citizens under our birthright citizenship laws. The new Biden order is trying, or least pretending to try, to end this widely criticized situation, but it includes no more resources for border enforcement, and while it probably will have some impact, it is not expected to stop illegal immigration at the southern border, much less reverse that which has already taken place. Biden’s opponent immediately condemned the move on fantasy grounds, calling it “amnesty” and conjuring images of illegal immigrants taking and murdering American citizens. Such is the state of play in immigration politics today: cynical electioneering over a backdrop of incoherence, making a mess of things, while harming real lives. But the bipartisan mantra is enforcing the law. Everyone wants that, promises that, and tries to achieve that.
But it can't be achieved.
Because politicians don't understand, or won't understand, or won't acknowledge that, for decades, the political discourse has continually encouraged popular frustration, waxing and waning, concentrated on but not limited to the political right, at the government’s perceived negligence in not simply enforcing the law already. If only the government would enforce the law, many feel, and their feelings are intermittently embodied in proposed compromise legislation, then sympathetic groups of illegal immigrants, such as the Dreamers, could be amnestied on a one-off basis, without fatally undermining national sovereignty.
But it's simply not in the nature of free societies for laws against immigration to be fully enforced. Immigration enforcement efforts certainly reduce immigration tremendously compared to what it would be under open borders, but they don't render illegal immigration negligible, or deprive it of widespread sympathy and respect, or above all, capture the moral high ground for the law as against people looking for a better life by moving to a great free country.
To understand the limits of immigration enforcement, a good place to start is to look at a historic parallel to another unenforceable law, about which America eventually did the right thing, namely, Prohibition.
Prohibition and the Trouble with Laws against Victimless Crimes
In 1918, the United States, fulfilling the dreams of generations of temperance crusaders, passed the 18th Amendment to the Constitution, prohibiting the consumption of alcoholic beverages. In 1933, it passed the 21st Amendment, repealing the 18th. Prohibition was a 13-year experiment which has ever since been looked back on as a mistake. And yet it wasn't simply a failure. Prohibition reduced alcohol consumption by maybe around half overall, more at first, less later as people found workarounds. The temperance movement, powered by women volunteers and a harbinger of 20th-century feminism, was a very understandable and well-intentioned reaction to the scourge of alcoholism, of workingmen wasting their wages on drink to the detriment of their wives and children. Prohibition had noble aims and achieved them to some extent. Why was it a mistake? What was wrong with it?
The most vivid and dramatic harm Prohibition did was to empower organized crime. Prohibition was the heyday of Al Capone, the rise of the American Mafia, the time of the bootleggers. We'll come back to that.
But the first failure to note is simply that alcohol consumption fell only by around half. There was still a lot of drinking going on. Of course, no law is perfectly obeyed. It isn't a scandal that, although burglary is illegal, there are still some burglars. Society, including government and public opinion and most of the citizenry, is trying to prevent burglary, though with imperfect success. Most Americans are law-abiding citizens who do not engage in or condone or abet any kind of burglary. By contrast, drinking was common during the Prohibition era, not merely in a small criminal underclass but through much of the population. Many people who were otherwise law-abiding citizens, or even leaders of communities, drank alcohol. Drinking was glamorized in art and literature, for example, in the works of best-selling writers like F. Scott Fitzgerald and Ernest Hemingway. Law and public opinion parted ways, and the practice of law enforcement was reduced to naked coercion by the government, since it lacked a grounding in a socially shared moral consensus. Prohibition compromised the legitimacy of the law.
This point is a bit difficult to make clear, however, because Prohibition did, initially, enjoy majority support. Without that, it couldn't have become law in a democracy like the United States. Why isn't democratic majority support sufficient to constitute moral consensus and give a law legitimacy?
At bottom, Prohibition lacked legitimacy because drinking alcohol, if criminalized, is a victimless crime, so it isn’t actually any of the government's, or the democratic majority’s, business whether individuals do it or not. Very likely, most readers will find this point rather obvious, and feel no need for further explanation or persuasion. Nonetheless, it is so important that I will belabor it somewhat, providing philosophical foundations and historical backstory and extensive applications in order to fix it firmly and make it loom large in readers’ minds. For it is the key to understanding the nature of free societies, and the rights and wrongs and possibilities and limitations of immigration policy in particular.
The Lockean Social Contract
The political philosophy that undergirds American freedom, and from which Prohibition represented a problematic and ultimately intolerable departure, can be traced back to the 17th century philosopher John Locke. Locke himself had predecessors and forerunners in the cause of liberty, such as canon lawyers like Gratian (12th c.) and the English barons who revolted against King John in 1215 and wrested from him the Magna Carta, but it would take too long to concern ourselves with them here. Suffice it to say that when he wrote against the absolutist pretensions of the Stuart kings of England, John Locke was renovating an old tradition of law and rights against the innovation of kings who claimed to be above the law. Thereafter, Locke became a kind of intellectual godfather to the free constitutions of America and Britain. John Locke's book Two Treatises of Government was written in 1689 to justify the “Glorious Revolution” which had taken place the year before, expelling from Great Britain the Stuart monarchy and establishing Parliament as the kingmaker and real sovereign of Great Britain. The Glorious Revolution of 1688 laid the foundations of the liberal constitution of modern Britain, and Locke was its best apologist and explicator, elucidating the principles of government which animated it. Almost a century later, Thomas Jefferson channeled Locke when he wrote the Declaration of Independence, and Lockean ideas became the heart of the American civic creed until the New Deal. They still enjoy considerable influence today. What, then, did Locke have to say?
In my 2010 book Principles of a Free Society, I laid out a political philosophy starting from Lockean foundations which addressed the general nature of government in free societies, as well as a variety of contemporary hot topics. I'm channeling that here.
Locke posed the question of where governments get their legitimacy, and how their use of force can be justified. His answer was that governments are legitimized by a social contract, through which people relinquish the natural right to avenge wrongs, delegating it instead to a government.
People have rights, by nature. It's wrong to attack them or steal their property, if they haven't done you any harm, regardless of what the government says or whether any government exists. When people's rights are violated, they have a right to defend themselves. However, it's often difficult to discern just what the rights of different people are. If everyone must serve as judge of his own case, people's mistakes and biases will tend to give rise to cycles of violence and feuds. And so it is in the general interest to institute, through a social contract, some common power to protect everyone's rights. People can then agree, instead of being judges in their own cases, to defer to the judgment of this common power, or government, when feasible, and not use violence on their own behalf to avenge infringements of their rights, unless a crime is actually underway and there is no time to summon the government to help.
In using force against criminals, such a government derives its authority from the victims of the crimes. It is therefore authorized to use force only insofar as it is protecting people's rights and avenging violations of those rights. It is not authorized to use force indiscriminately or arbitrarily, to suit the mere preferences of whoever might happen to be wielding power. If it is so used, for ends other than the protection of rights, it becomes, in Locke’s view, unjust, and subjects are authorized, by natural right, to resist it, just as they would be within their rights to resist a thief. Thence flows the right of revolution exercised by the people of Britain in 1688 against the Stuart monarchs, and by the people of America in 1776 against King George III.
Locke's theory is probably the best account of the legitimacy of governments ever framed, and it has long undergirded the most legitimate, stable, and successful polities in the world, yet it is far from watertight. The historicity of Locke's social contract is problematic, to say the least. I don't remember signing a social contract, do you? And it's not clear how a government built on Locke’s principles could derive the power to tax. However, we are not here concerned so much with pure ideology as with practical application. For Locke's theory sheds a useful light on the daily administration of justice, and on why laws that criminalize victimless behaviors are in a quite different and more problematic moral category from laws that protect people's rights.
Police Authority and the Special Legitimacy Problem of Laws Against Victimless Crimes
Governments are, as Locke's theory emphasizes, regularly asked by their citizens to protect rights and avenge infringements of rights. People do, in fact, call the police. In such cases, the victims of crimes, or the potential victims who are afraid of crime, are a critical ally of the government.
In the case of burglary, for example, citizens first make private efforts to prevent burglary, such as installing locks on their doors, keeping weapons in their homes, asking neighbors to keep an eye out if they go away, and standing ready to physically resist intruders. Potential burglars must concern themselves, first, with such private efforts to enforce the law. Will the door be locked? Will the homeowner be at home? If so, will he have a gun? Many crimes which would have taken place if citizens took no precautions to prevent them will thus be prevented or deterred by private action, without the government doing anything. The law wins, without even trying.
If a crime does take place, the victim continues to be an important ally for the government. The victim will be eager to notify the government that the crime has taken place. The victim gives the government information helpful in apprehending the criminal.
Most importantly, and this is where Locke's theory really proves its worth, the victim gives the government a moral mandate to pursue the criminal. The government will frequently need the cooperation of third parties, people other than the victim and the criminal who happen to have valuable information or some ability to aid or impede the investigation. Such third parties might, in principle, be on the side of either the victim or the criminal. If they were on the side of the criminal, they could deceive the government, or simply remain silent. But they will generally be on the side of the victim, because the victim’s rights have been violated, so the victim has a moral advantage, whereas the criminal, having violated the victim’s rights, is at a moral disadvantage. The government itself may not be an object of particular sympathy, and if the competition for third parties’ sympathy was only between the criminal and the government, some might prefer to spare the criminal jail time rather than help the cops solve a case. But the government does not stand alone. It is the ally and agent of the victim. Any citizen who would mercifully spare the criminal from punishment by helping them to avoid getting caught would thereby wrong the victim, so conscience usually prevents this. Thus the victim's moral authority enables the government to operate with the broad consent and assistance of society as it enforces the law.
But all this changes when there isn't a victim, and this brings us back to the case of Prohibition. Drinking alcohol in the 1920s was a victimless crime. If, sitting quietly at home at the end of an evening, you drank a glass of wine or a bottle of beer, you broke the law, but you didn't hurt anyone. From a Lockean perspective, this places a government enforcing Prohibition on the wrong side of the distinction between legitimate and illegitimate violence, since instead of protecting rights, it was merely enforcing the preferences of the “sovereign” electorate, and violating the natural rights of drinkers to make what use they would of the gifts of nature. The splendid and sadly underused phrase “tyranny of the majority” is apt here.
At a practical, law enforcement level, there was no victim to prevent the “crime” from happening in the first place, or to notify the government when it happened. More importantly, there was no victim to secure the sympathies of third parties for the government rather than the “criminal.” Bystanders whose consciences would trouble them if they were to conceal a real crime feel less troubled, or not troubled at all, if they conceal a victimless “crime.” Indeed, many Americans in the 1920s would doubtless have felt guilt and remorse if they had betrayed to the government, for merely drinking alcohol, some friend or acquaintance who hadn't done them or anyone else any harm, and rightly so, since to collaborate with the enforcement of unjust laws in that way is a wicked thing to do.
The criminalization of a common and victimless behavior tends, as mentioned above, to create rich opportunities for organized crime. Crimes with victims can occasionally be lucrative, but they tend to enjoy much less complicity from society, which limits the scale on which they can be practiced. It's when victimless activities are declared criminal by the law that criminal organizations can really start making money, tapping into large-scale demand from mainstream society. The exit of established, law-abiding businesses leaves an opening for criminal enterprises, which operate outside the law anyway and are therefore well-suited to the job of satisfying illegal demand.
In the 1920s, all sorts of otherwise law-abiding citizens helped to finance the Mafia by buying alcoholic drinks that could not be obtained legally. Of course, the Mafia didn't just engage in victimless crime. Rival Mafia clans often killed each other as they competed for markets. Legitimate businesses also sometimes try to exclude competitors from a market, but they're likelier to avoid resorting to killing people to achieve that, both from conscientious and self-interested motives. They value the safety and respectability of being legal and non-violent. Meanwhile, criminal organizations dealing in illegal products can typically make much larger margins than legitimate businesses can. The extraordinary profits that result from these high margins justify the risks and inconveniences of operating illegally, and sometimes provide the motive for gangland killings.
An Inventory of Victimless Crimes
While Prohibition is long gone, there are many other cases where the law burdens a behavior that is arguably victimless. Let's review a few of them. They are topics on which public opinion is notably nuanced.
The long-running “War on Drugs” has had many of the same effects as Prohibition, empowering organized crime and drawing many otherwise law-abiding citizens into participation in illegal markets. Unlike alcohol, though, meth, cocaine, and fentanyl lack deep roots in Western tradition, and are not regarded by most people as part of any healthy lifestyle, so disobedience to drug laws isn't as mainstream as disobedience to Prohibition was in the 1920s, and public support for the War on Drugs has proven more durable. Drug laws continue to be controversial, however. Drug addicts are often objects of sympathy and pity in a way that those whose crimes victimize others are not. Surveys find that well over 10% of the population uses drugs that have historically been illegal. There is a trend towards legalizing marijuana, in particular, and surveys suggest that substantial majorities think the use of marijuana is morally acceptable.
Prostitution is arguably a victimless crime, since both the prostitute and the client consent to the act. But the prostitute may be regarded as a victim, especially if she was forced or tricked into it, or if mental health or substance abuse problems make her unable rationally to plan her life. If the client is married, his wife might also be regarded as a victim. Prostitution is illegal throughout the United States, except for a few counties in Nevada, but is permitted in many other OECD countries. Surveys suggest that a substantial proportion of men, e.g., 14% in the United States, have paid for sex, which is much less than in the past. A 1948 study by the Kinsey Institute found that 69% of men at that time had patronized prostitutes. This may show that legal prohibition of prostitution, which was legal in many places in the 1940s, has reduced the amount of prostitution taking place, without eliminating it or rendering it negligible. On the other hand, societal trends in preferences and morals, rather than changes in law, may account for at least some of the decline.
Underage drinking is a victimless crime in itself, though drunk driving is not, since it puts the lives of other motorists at inordinate risk. Since the main motive for criminalizing underage drinking was to protect motorists from young drunk drivers, this is an ambiguous case, where the government’s motive was to defend rights, yet in pursuit of that end, it substantially burdened a victimless behavior. The federal government raised the drinking age to 21, from 18, in 1984. But that law is widely disobeyed. Underage drinking is common, and just over half of 12th graders drank during the school year as of 2018, representing a decline from previous levels. Underage drinking is rampant on many if not most college campuses, where students can get alcohol from 21-year-old friends. Sometimes, 21-year-olds lend their driver's licenses to underage friends so that they can drink in bars. The higher drinking age seems to have reduced fatalities from drunk driving and continues to enjoy majority support in the United States, even as most young people disobey it. Few college students seem to feel guilty about drinking, and many underage drinkers go on to have successful careers.
The appointment of Brett Kavanaugh to the Supreme Court in 2018 sparked a debate that's illustrative of public opinion with respect to underage drinking. During the confirmation hearings, Judge Kavanaugh was plausibly though unprovably charged with attempted rape. These charges were taken extremely seriously by senators and the country at large. But no one seems to have considered the possibility that Judge Kavanaugh’s extensive underage drinking, which unlike the alleged rape attempt was a well-corroborated fact, should disqualify him to serve on the highest court of the land, even though that was also illegal conduct. If driverless cars arrive and replace human-driven cars, it will be interesting to see whether the drinking age gets reduced.
Speeding is not always a victimless crime, because it can put other motorists at risk. Sometimes, however, due to a driver's skill, or road conditions, or simply a lack of other cars on the road, drivers can go faster than the speed limit without inordinate risk to others. And they do so all the time, with one survey finding that 45% of Americans sometimes exceed the speed limit by 15 mph or more. It's quite common to go with the flow of traffic on a highway or city street and find oneself going five or ten miles per hour above the speed limit. Indeed, it's not uncommon for hundreds of cars in succession to speed past a cop, with none of them getting pulled over, or having much fear of it.
Such conduct might suggest that most people don't agree with the posted speed limits. Why, then, don't they demand that their elected politicians either raise the speed limits or eliminate them? If they want to drive 70 miles per hour, why don't they use their voices and votes to make it legal for them to do so, rather than frequently breaking the law? After all, in democracies, politicians are quite attentive and deferential to public opinion, and if the public favored higher speed limits, it would probably get them. Apparently, it doesn’t. People want speed limits, and they want to violate speed limits when they have them. Why?
The answer is probably that voters think actual highway speeds are an increasing function of the legal speed limit, even if motorists don't conform to the legal speed limit. Suppose people drive five miles per hour faster than whatever the speed limit is. Then, if you want people to drive at 70 miles per hour, you need to set the speed limit to 65. Or perhaps each five-mile-per-hour increment in the legal speed limit would raise actual highway speeds by three miles per hour, so again, to bring highway speeds down to x miles per hour, the speed limit needs to be less than x. And why should individuals want to drive faster, personally, than they want people in general to drive? Because a speeding motorist imposes risks on others as well as himself. This negative externality from speeding would cause prevailing highway speeds to be too fast, unless the legal speed limit induces drivers to slow down a bit. And so we get the irony that democratic governments pass and maintain speed limit laws that most of their citizens regularly disobey, because citizens want other drivers to slow down. It's a kind of benign scofflaw equilibrium.
All these more-or-less victimless crimes vary in their seriousness and frequency, but exhibit at least one common pattern, namely, that the criminalization of a victimless activity does not cause it to disappear, or to become vanishingly rare, or to become socially ostracized. The victimless character of the “crime” reduces the effectiveness of law enforcement, and induces a lot of participation and complicity in illegal behavior, on the part of otherwise law-abiding people. The usual social penalties of breaking the law do not apply, because it’s immoral rather than illegal conduct that people find repugnant and ostracize, so people who do things that are illegal but not morally wrong can be treated normally in social intercourse. The criminalized activities continue to be widely condoned, talked about with amusement or desire or mild disapproval but rarely with horror, and may remain respectable. It might even become more fashionable because its illegality makes it glamorous.
Worse, the law loses its foundation in conscience and public opinion, and becomes more nakedly coercive. The agents of the law lose some of the public's esteem. They cease to be seen as heroic public servants, and may even face ostracism. The ideals of the rule of law come under strain and begin to erode and break down. For all these reasons, society should not lightly pass laws that criminalize victimless behavior, and should curb its expectations about how effectively they can be enforced.
Illegal Immigration is a Victimless Crime
Here we come to the crucial point: Illegal immigration is a victimless crime. There is no one directly harmed by it who has an incentive, or a right, to resist it by private means. There is ordinarily no one to bring a complaint to the government and demand redress of wrongs. There is no specific individual victim for whose sake society must recognize the government's right to prosecute and punish an illegal immigrant. Nor is anyone wronged by citizens who fail to report undocumented immigrants, or who help them to meet their needs for jobs, food, and housing. The harms done to immigrants by ICE therefore seem as gratuitous as the harms done to burglars and murderers by the regular police are justified.
But doesn't illegal immigration have victims? What about the person who can't find a job because jobs for which he would be qualified are already taken by illegal immigrants? What about the victims of crimes committed by illegal immigrants, e.g., robbed or raped by them, a rare occurrence but by no means non-existent?
In the case of illegal immigrants taking jobs, the answer is that any kind of clear thinking about victimhood must begin from a notion of rights, and people don't have rights to get or keep particular jobs. Stated bluntly, this claim may sound off-putting, yet any denial of it leads immediately to absurdities. If people have rights to particular jobs, any successful candidate for any job violates the rights of all the unsuccessful candidates, and any employer whose business turns bad, necessitating layoffs, is a rights violator with many victims. It might even imply that employers with means who pay dividends to investors instead of creating make-work jobs for the unemployed are rights violators. We must acknowledge that people don't, in general, have a right to get or keep particular jobs, on pain of completely delegitimizing capitalism and offering nothing workable in its place. Illegal immigrants who take Americans’ jobs violate their rights no more than native-born citizens who do the same. Whatever one’s policy preferences on immigration, then, the notion of being a “victim” of an illegal immigrant competing for a job is not the right way to frame the issue. And so the point stands: illegal immigration is a victimless crime.
As for those robbed or raped by illegal immigrants, they are indeed victims, but not of illegal immigration, rather of robbery and rape. It's very important to be extremely clear-headed here, so that groups statistically prone to undesirable or criminal behaviors don't get collectively punished for what particular members of some category do. Americans have sometimes, to their shame, punished large groups, such as blacks or Japanese, for threats thought to be posed to the nation by the real or perceived propensities of members of these groups to behave in offensive, criminal, or treasonous ways. In the case of illegal immigrants, their propensity for crime is actually lower than natives’, but even if they did pose a disproportionate threat, justice demands that the punishment focus on guilty individuals, and not on the general class of illegal immigrants.
When the law punishes victimless crimes, conscience ceases to be on the law’s side. Undocumented immigrants whom conscience would prevent from breaking the law in ways that harm others are unlikely to feel much guilt about breaking immigration laws, since there is no victim. On the contrary, many feel a positive duty to break the law because it is the only way that they can feed their families or keep them safe. Citizens feel little guilt for helping illegal immigrants. They are more likely to feel guilty if they help the government to detect and deport an immigrant who never did them or anyone else any harm, as they should, for helping the government hunt down illegal immigrants is a bad, rights-violating thing to do, as everyone’s conscience will bear witness who gives serious thought to right action. ICE agents are rightly regarded by many as persecutors rather than protectors. With respect to the actual frequency with which the law is broken, immigration enforcement is fairly effective: it keeps a lot of people out. But it does not render illegal immigration a negligible phenomenon, and it fails to marginalize illegal immigration morally.
One of the noblest reasons for enforcing the law is the redemption of the criminal. Murderers and thieves may want to escape punishment, but the wise know that being a murderer or a thief is a greater curse than any punishment. In the best case, prosecution and punishment helps to bring the criminal to a recognition of the horror of his crime, to repent, and to reform his will, so that he becomes good, and loves his fellow men, and treats them as he would want to be treated. If society permitted murderers and thieves to go free and unpunished, it would wrong not only the victim, but the murderers and thieves themselves, depriving them of the best hope of moral reformation. And so in pursuing and apprehending criminals, society not only defends itself, but should and may love and serve the criminals themselves as best it can. None of this, of course, applies to immigration enforcement. Society can’t claim to act out of love towards immigrants when it apprehends and deports them, often separating them from families or sending them into destitution or danger. It cannot pretend, with any plausibility, that it is doing them good. It cannot claim a redemptive mission. In this respect, illegal immigration is at a disadvantage even relative to other victimless crimes, since the government can claim, very plausibly, that in forbidding people from smoking cocaine, meth, and so on, or from gambling or engaging in prostitution, it is acting for the welfare of its subjects, protecting them from harming themselves.
Americans are pretty relaxed about widespread disobedience to laws against speeding and underage drinking. They're less at peace with prostitution and fentanyl, but there still seems to be a certain acceptance that perfect general obedience to the law isn't achievable or necessary, and some sleaze and illegal drug use isn't a reason to be radically disillusioned and want to overthrow democracy and the rule of law. People's attitudes are fairly nuanced, and fairly relaxed. By contrast, undocumented immigration is the focus of non-stop, ever increasing hysteria, which constantly tends to imagine that illegal immigration is an existential threat to society, and to be satisfied with nothing less than perfect enforcement. Why should Americans cling to the fantasy that perfect enforcement of immigration restrictions is achievable, when they are so familiar with the ongoing prevalence of other victimless crimes?
Ignorance.
Americans are capable of practical and psychological realism about speeding and underage drinking, because most of them have done it, or at least, faced the choice of doing it. They've thought about it firsthand, practically and morally. They've experienced what conscience tells them, and what it does not. Them, in the face of an immediate opportunity or need to break these laws that are not in sync with moral rules.
By contrast, Americans don't know what it's like to be an illegal immigrant, to be driven by urgent need to leave one's country and come to America without permission. Without first-hand experience, they're not capable of much sympathy understanding, certainly not nearly as much as in the case of victimless crimes to which citizens themselves are prone. The exception that proves the rule is that a million or so. American citizens were illegal once and were pardoned by the Reagan amnesty of 1986. But that was a long time ago, and they may not remember very well what it was like, and anyway, they're a tiny minority. Meanwhile, millions of other people know intimately, poignantly, firsthand, what it's like to need to immigrate illegally, and then to live in the shadows, and suffer all the inconvenience and fear. But they don't have votes.
False Negatives, False Positives, and the Costs of Legal Compliance and Legal Errors
Another problem with law enforcement against victimless crimes is that it’s costly, and not only in government resources. It's also costly for citizens to comply with the increased surveillance that efforts to prevent victimless crimes usually require. And detection is subject to error, so penalties intended for those involved in victimless crimes must sometimes fall on people quite innocent of them.
The case of speeding may illustrate the principle. A government that wanted to really crack down on speeding probably could reduce its incidence. An obvious step would be to put a lot more traffic cops on the roads. That’s expensive. More cops would presumably make more mistakes, so some innocent people would suffer.
Traffic cops could also be instructed to be very strict in pulling over anyone who was speeding at all. That requires fewer tax dollars. Harsher punishments for speeders could be another relatively cheap way, cheap at least for the government, to make law enforcement effective. One problem with harsher punishments of speeders is that it would be unjust. If the penalty for speeding were one year in jail, fewer people will speed, but those who do, and spend a year in jail for it, would be severely wronged, since the punishment they suffer would be very disproportionate to the risk-weighted harms to others that could be expected to result from their speeding. Traffic safety might suffer, too, because it's actually best for drivers to look at the road and not constantly to stare nervously at their speedometers. And sometimes drivers ought to speed, for example to get out of the way of another car. Draconian penalties for speeding might cause them to endure crashes rather than speed, thus harming others as well as themselves. In other cases, drivers speed unintentionally, for example if a speedometer is faulty, or a driver simply doesn't notice he's pushing the gas too hard. The more unintentional an action is, the less effectively incentives can prevent it. Fearing that they might unintentionally speed and then face dire penalties, citizens might drive far below the speed limit, or avoid driving altogether, at great inconvenience and quite unnecessarily. And some speeders whom the cops tried to pull over would resort to a high-speed chase and hope to outrun the cops, rather than submit to the exorbitant punishments for speeding.
Completely innocent non-speeders would suffer, too. Cops and their equipment can make mistakes. Supposed a cop sees a car in a 65 mile per hour zone, checks its speed, and gets 67 miles per hour. But the cop misread his instruments, and really the target car was traveling only 64 miles per hour, and was therefore innocent. Under the current regime, cops usually ignore drivers who are only one or two miles per hour over the speed limit, saving their attention for more serious speeders. This means that if a cop does pull a driver over, the cop probably thought the driver was going at least 5 to 10 miles above the speed limit. With that size of a buffer, it's unlikely that anyone detected as speeding was actually driving under the speed limit. But if cops tried to be stricter, their errors would be more likely to result in punishing the innocent.
So while it’s possible to make law enforcement against victimless crimes more effective through intense surveillance and draconian punishment, it wreaks severe and escalating damage. So with immigration restrictions.
The classification of errors into “false negatives” and “false positives” is worth explaining at this point, as a key concept in understanding the trade-offs that law enforcement faces. In the case of speeding, a false negative is when a cop mistakenly classifies a speeder as a non-speeder, and lets her get away. A false positive is when a cop mistakenly classifies a non-speeder as a speeder, and an innocent person is punished. Different methods of testing for a condition result in different ratios of false negatives to false positives. For example, suppose that cop A pulls drivers over whenever she thinks they are speeding at all, while cop B pulls drivers over whenever she thinks they are speeding by at least five miles per hour. Suppose further that both cops are fallible, and the speed they perceive is an imperfect indicator of the true speed. Cop A will pull more drivers over, and will let fewer speeders get away. But cop A will also not infrequently pull over drivers who weren’t speeding at all. Cop B will let more speeders get away, but will very rarely give tickets to innocent non-speeders. In this case, false positives are far worse than false negatives, so cop B’s procedure is probably better. As the old saying goes, “Better to let a hundred guilty men go free than condemn one innocent man.” Realistically, though, false positives can't be avoided altogether. Horrible as it is to think about, there must be some innocent, wrongly convicted people in America's prisons.
Citizens suffer from the false negatives (false determinations of no right to work) of E-Verify, and would suffer more if it were more widely required.
Why Universal E-Verify Would Destroy Jobs
The E-Verify program is a government website, established in 1996, that enables employers to check the immigration status of new employees. Some employers are mandated to use by state or federal law, but most are not. It varies by state, with many states mandating E-Verify use for some, and a handful mandating it for all, employers. But even in South Carolina, considered the toughest E-Verify enforcer, compliance is only around 50%. One of the pet causes of many immigration restrictions is E-Verify escalation, increasing mandates and enforcement. It's a good opportunity to cross-apply the lessons of the speeding example.
False positives and false negatives are important to understanding the impact of the e-Verify program. For e-Verify makes mistakes.
At the time is writing, current data indicate that 1.6% of e-Verify inquiries result in a “tentative non-confirmation.” The worker can then appeal, though some workers probably don't realize this or don't know how. Some of those who do get the tentative non-confirmation reversed. The rest get a “final non-confirmation.” So we know that e-Verify makes mistakes, and we have a lower bound estimate of their frequency. They might happen a lot more often than that. We don't know how many erroneous “tentative non-confirmations” are never challenged. We don’t know how many “final non-confirmations” are mistaken. We also don't know how many undocumented immigrants with fake IDs get e-Verify’s erroneous stamp of approval. A Cato study runs the numbers and shows that hundreds of thousands of US citizens have had their right to work disrupted by an E-Verify tripwire, even though only a small fraction of employers currently participate. If E-Verify became mandatory for all employers, and it made mistakes at the same rate, US citizen workers who had their employment terminated every year because of E-Verify errors would have more difficulty finding another job.
But surely E-Verify would improve over time, and make fewer mistakes, wouldn't it?
Not so fast. The problem is that there's a kind of arms race here, between the administrators of the e-Verify system, who want to catch undocumented immigrant workers, and undocumented immigrant workers, who want to avoid getting caught. Any bit of information the administrators of the system use to identify fake Social Security Numbers is a bit of information that undocumented immigrants, or those providing fake ID services to them, will try to obtain.
Any type of E-Verify system will have to take some pieces of information as inputs. For example, suppose e-Verify only checked whether a Social Security Number is real. Undocumented workers could then use fake Social Security Numbers but their real names. In that case, E-Verify could improve detection simply by checking whether the Social Security Number fits the name. This procedure would generate some erroneous non-confirmations due to misspellings or multiple spellings of names. People named “Mathew” with one t, or “Smythe” instead of “Smith,” might have trouble. Meanwhile, undocumented immigrants could try to get Social Security Numbers with the right names attached to them, and we would have, say, Julio Moreno claiming to be Robert Dow, or Mateo Lopez claiming to be Paul Anderson. Then the E-Verify administrators would need some other information to catch the cheaters. The more information they require, the greater the burden on employers and workers, and each bit of information will produce more false negatives. If, for example, e-Verify began asking for photos of job applicants, employers would need to have cameras on hand, and job applicants might need to avoid changing their appearance so that they would look similar enough to the photo that e-Verify had on file for them for the E-Verify face recognition bot to declare a match. And undocumented immigrants could still conspire with employers to send in photos to match the fake ID they are using. It’s not clear where this arms race ends.
Every increment of difficulty in E-Verify compliance is a disincentive for employers to hire at all. Most new hires last a year or less. Sometimes, employers just need a bit of temporary help to get through a rush, and could use overtime instead. Sometimes, employers hire speculatively, to pursue a project that has promise but that the company doesn’t really need. One downside of hiring is that employees sometimes turn out to be lazy or negligent and need to be fired. Often, the employer could choose not to hire, by reallocating tasks within an existing team, or by simply dropping the project. When all costs and risks and alternatives are taken into account, some jobs are barely worth creating. Add a bit more bureaucracy to the hiring process, and they won’t be created at all. And this logic doesn’t only or primarily apply to employers who would have hired undocumented immigrants. Even if all the applicants would be native-born US citizens, a mandatory E-Verify check still raises hiring costs, and therefore destroys jobs.
Another problem that immigration enforcement efforts frequently encounter is that they give employers an incentive to discriminate. Some US citizens look or sound more “foreign” than others do, from which employers can make probabilistic guesses about the likelihood that a given job candidate or new employee is an undocumented immigrant. A Hispanic citizen might, from an employer’s perspective, have a 50% probability of being undocumented, in the sense that 50% of those who look and sound like her are undocumented immigrants. If an employer uses E-Verify on a new employee, and gets a tentative non-confirmation, the employer is not allowed to take adverse action against the employee, if the employee appeals, until a final non-confirmation is received. In that case, not only will the employer have wasted wages and training on the employee, but it’s likely that other job candidates will have moved on, so the employer will have to launch a new search. To avoid this, employers might prefer to hire a white candidate with no accent over a foreign-sounding Hispanic candidate, even if the white candidate is a bit less qualified. They can’t, in principle: it’s discrimination. But discrimination can be hard to prove, since hiring decisions can be affected by so many subjective factors. Employers facing a balance of risks might take a chance on a discrimination lawsuit rather than hire a candidate who seems likely to be an undocumented immigrant. And any escalation of immigration enforcement strengthens employers’ incentives to discriminate against foreign-looking citizens.
It gets worse. If an employee passes E-Verify, the employer is still not necessarily safe. If they know the employee is actually an undocumented immigrant without work authorization, despite passing E-Verify, they can still be in legal jeopardy. Even if they lack “actual knowledge,” but have “constructive knowledge”-- they should have been able to guess that an employee was undocumented-- employers can be liable. And yet employers also have to tread very carefully with respect to employees’ privacy. They can’t ask about citizenship or immigration status. Even if they get a “no-match” letter from the Social Security Administration, indicating that a person’s name and Social Security Number don’t match so they’re likely to be illegal, employers run a risk of being sued for discrimination if they act on it too aggressively by, say, firing the employee immediately. And yet penalties for having undocumented immigrants on the payroll can be as great as ten years in prison. It’s not clear whether there’s always a way for employers to behave legally, in the face of all these weird rules pushing in opposite directions.
Such laws aren’t fit to be enforced, and fortunately, they usually aren’t. On its website, ICE explains that it “concentrates its worksite inspection efforts on employers conducting business in critical infrastructure” as well as “abusive and exploitative employers” guilty of “egregious violations of criminal statutes,” including human trafficking, money laundering, and force, threats or coercion. This pose of tender solicitude for immigrants on ICE’s part is ironic, since there can be little doubt that ICE’s own deportation activities do much more harm to immigrants than exploitative employers do. The irony becomes grimly comic when ICE mentions “threatening to have employees deported” as one of the egregious things that abusive employers do. ICE is shocked-- shocked!-- that immigrants are being made to live in fear of deportation.
To the extent that ICE really does focus on critical infrastructure and abusive employers, that’s good and bad. It’s good, because ICE’s selective enforcement turns the law into something much more sensible and just than what was actually passed by Congress. Stopping foreign terrorists from infiltrating airports and nuclear power plants, and preventing involuntary human trafficking, unlike the deportation of peaceful workers in ordinary production and service jobs, are rights-protecting activities that fall within the proper purview of a limited Lockean state. But such selective enforcement undermines larger principles of the rule of law. The principles of rule of law are that laws should be (a) publicly promulgated, (b) equally enforced, and (c) independently adjudicated. A focus by ICE on critical infrastructure and abusive employers means that immigration laws are not equally enforced against all employers, and makes the real, practical law into something different than the publicly promulgated law. Many employers who deliberately, or unknowingly but with what ICE might deem “constructive knowledge,” employ undocumented immigrants, are protected up to a point by ICE directing its focus elsewhere, but they can't feel wholly secure. It's characteristic of regimes lacking the rule of law, such as Vladimir Putin's Russia, that no one feels safe: the regime could go after anyone, for its own inscrutable reasons, if it chose. US immigration law moves us in that direction.
There are other ways to work besides being a formal employee. It’s legal for people to hire you to do contract work for up to $600 without providing an I-9 or any paperwork. Undocumented immigrants can make a living this way, doing small jobs for many different people, without ever triggering a requirement that anyone fills out any paperwork at all. Such business practices would become much more common if an amnesty for undocumented immigrants were accompanied by more aggressive enforcement. More generally, there are many ways that tasks can be allocated across organizations and individuals, with different implications for who qualifies as an employee. Compare the following three cases:
You work for a computer store, fixing computers.
You have your own shop that fixes computers.
You buy computers that need fixing, fix them, and sell them at a profit.
In each of these cases, you are doing the same work. In the first case, you are an employee. In the second, you are self-employed, and you would likely need a business license, which can, fortunately, often be obtained without triggering a check on your authorization to work. In the third case, you have taxable income, but you could pay income taxes to the IRS using an Individual Taxpayer Identification Number (ITIN), you could probably do without a business license, and you might not even qualify as self-employed in government statistics. Most of the US workforce consists of employees, reflecting certain advantages of the employer-employee arrangement, but there are other ways to work for a living. An immigration reform consisting of amnesty plus aggressive enforcement might lead, to cite one of its more benign consequences, to undocumented immigrants who cannot pass e-Verify switching to self-employment, or just trading and selling things. Of course, many already work for cash and get paid “under the table,” and more of that could be expected..
It's a bad idea to expand E-Verify.
The Wall
Since this post is about the limits of immigration enforcement, and generally points in the direction of less enforcement in the interests of human rights and the rule of law, it's only fair that I mentioned the one major way that the US could enhance immigration enforcement without jeopardizing democratic rule of law.
The Wall.
I don't want to see a Wall along the southern border completed. It's better that Mexicans can and do regularly slip across the border and pick our strawberries in California. Yum!
But a physical wall along the southern border, at cost of probably over $20 billion– but that's still only ~0.1% of US GDP– could reasonably be expected to reduce incoming migration, while not really burdening citizens with extra compliance or risk of false negatives leading to government interference or undeserved punishment.
It wouldn't end illegal immigration. People can go under, over, or around, or overstay tourist visas. But I think the Wall would be a smart concession for the friends of immigration to make, in return for the SREAM Act.
How Immigration Enforcement Endangers Democracy
If there were a push by ICE to enforce the law aggressively against all employers, many employers would make good-faith efforts to hire in legal ways, avoiding both discrimination and “knowingly” hiring undocumented immigrants, fail to satisfy the strange, sometimes impossible standard, and end up facing ruinous fines, or in jail. Their ruin would destroy jobs for their other employees, including native-born US citizens. It would also leave holes in the economy for new enterprises, perhaps enterprises run by illegal immigrants or criminal enterprises, to fill. More and more of the law-abiding would conclude that employing people is just too legally perilous of a business to be in. But, as during Prohibition, the exit of the law-abiding would leave lots of room and high profit margins for specialists in being lawless. We could expect many labor-intensive industries to become heavily criminalized, like the booze business was in the 1920s. Vegetable farming, domestic service, landscaping, construction and other labor-intensive businesses might require new skills and assets, such as good marksmanship, a Swiss bank account, a place to hide bodies, and a bolthole in a non-extradition treaty country.
That's just not a place the historic American democracy is able to go. There are too many safeguards, too many tripwires, both built into the legal system itself and built into the way the political process selects leaders and interacts with public opinion. Other Western democracies are, if anything, even more unable and unwilling to go to extremes and ride roughshod over rights and due process into the rule of law in order to maximize immigration enforcement. In short, total immigration sovereignty is incompatible with the nature of free societies. But because this is not widely understood, there is a ruinous plausibility to taking a simple line on immigration policy by simply insisting the law be enforced, in other words, demanding total immigration sovereignty, and then getting angrier and angrier in proportion to the length of time that this unattainable goal has not been attained. The anger is directed first at specific politicians, later against “the establishment” as a whole.
What is “the establishment?” Perhaps it will sound polemical to say that it is simply the American republic, gratuitously given another label that can be rendered pejorative without colliding with nostalgic and patriotic affections. But what is the alternative interpretation of the phrase? To try to distinguish some pristine political culture of the great and good American people from the totality of laws and politicians and bureaucrats, of both parties or none, that have comprised the actual political administration of the country for decades or generations, is merely to pander to romantic nationalism, to a weird and ultimately destructive kind of wishful thinking. No doubt public opinion and mass culture do have some sort of existence separable from the people and procedures and written rules which supply governmental administration. But they're not a substitute for it, even when they are comparatively coherent and united. And now, and for a long time, they have been polarized and fissiparous. By far the closest thing to a point of agreement has long been the Constitution and democracy, of which ideas and principles the political establishment is the only available, and the only demonstrably possible, practical implementation. To attack the establishment is therefore to attack the Constitution and democracy. And this truth was dramatically acted out on January 6, 2021.
On that day, which will live in infamy down the ages, and which already carries a weight of horror for all American patriots, the generations-old tradition of peaceful, democratic transfers of power, which only a decade or two before seemed to Americans almost as natural and inevitable as the changing of the seasons or the laws of gravity, was shattered. A defeated presidential election lied that he had won the election and fomented a mob to storm the Capitol, so that the elected legislators of the House of Representatives and the Senate feared for their lives. A Rubicon was crossed. And nothing had done more to drive us to that Rubicon than angry and escalating demands for total immigration sovereignty.
Long before January 6, normal Republican politicians promised to enforce the law, but they also showed dedication to constitutional and democratic principles as well as norms of decency in politics and personal life. As a result, their effectiveness in stopping illegal immigration was bounded by the usual limitations of free societies in enforcing laws against victimless crimes. The president whose name will not defile this post ran from the beginning not only on opposition to immigration but on opposition to political decency. In 2016, he didn't simply want to build the wall, but to build the wall and make Mexico pay for it. And, shameful to say, there seem to have been many millions to whom this appealed. Needless to say, the United States has no right under international law to force a poor neighboring country to pay for our border fortifications. Allies who wanted to get him respectability came up with interpretations of this which, although very implausible, would, if attributed to him, above him from advocacy of international aggression, but that these were unread by most MAGA supporters hardly needs mentioning.
Once in office, that president hardly even tried to build the wall, much less to make Mexico pay for it, and he seems to have paid little or no political price for that. That raises the question of what his supporters really liked about the slogan in the first place. People said “he fights,” but other politicians also argue and vote and negotiate in order to achieve their ends. I can only speculate, and I'd be happy to be wrong, but again and again, I find myself checkmated into concluding that the lawlessness and bullying offensiveness of the proposal to make Mexico pay for America's wall against them was its appeal, and that the president fulfilled his campaign promise not in enacting that specific policy, but in being a lawless and offensive bully in general. And why did so many people want a lawless bully for president? Because they wanted total immigration sovereignty, and long experience showed them vaguely what I have tried to explain in this post, namely, that free societies can't achieve that. So the populist vote wanted to bust through the restraints of constitutional democracy, and he was the man to do that.
The worst thing about the events of January 6, 2021 is that they still enjoy broad popular support, not by a majority, but by far more than anyone habituated to the cult of patriotic freedom that animated the country and, say, the 1990s finds it easy to adjust to. Constitutional democracy will need a much more solid basis of support in public opinion if it is to survive. There needs to be much more of a consensus against coups d’etat. But for that, we will need to do to the dream of total immigration sovereignty what we did to the dream of Prohibition in 1932: to outgrow it, to formally abolish it, to recognize that it lies outside the practical administrative possibilities of a free society and outside the just prerogatives of government. For at the end of the day, victimless crimes are not really crimes, and democratic rule of law must be harmonious with natural law if it is to enjoy the moral and practical advantages of legitimacy.
Accepting the Limits of Immigration Enforcement
The alternative to succumbing to the dark side is to have the decency to pass the DREAM Act, and more generally, to let people stay whose integration into families and communities in America makes it inhumane to deport them, while at the same time, to stop invoking the panacea of perfect immigration enforcement, and recognize that illegal immigration is a victimless crime, and will always be in a grey area like speeding and underage drinking, rather than the moral black-and-white of burglary or murder that occurs when human laws are aligned with natural law and the protection of natural rights, and a lot of immigration will keep happening regardless of what the law says. Cope.
I like to call this combination of decency and realism “open borders,” but that jumps to a conclusion a bit, and anyway, the phrase means different things to different people, as I discussed in the introductory post of this series. The point is that we need an immigration system that both (a) respects natural rights and (b) makes it incentive-compatible to obey the law, and we can't achieve that without welcoming the stranger a lot more than we do today. Within that framework, it would be nice to provide native-born citizens with some help adapting to the large demographic and economic changes that will occur, and that will benefit many but probably harm quite a few in some ways, if the impacts are not carefully managed.
My basic recommendation has long been: don't restrict immigration, tax it.
Deportation is, for many or most undocumented immigrants, such a disproportionate and catastrophic blow that it's worth evading the law in order to avoid it. By contrast, a tax, even if painful, will typically be less inconvenient and burdensome than the manifold challenges of living in the country illegally. So undocumented immigrants will have an incentive to pay the tax and to get a working visa, rather than stay in the shadows. A tax is also a much more legitimate demand for the government to make, then insisting on exile to a country where a person may have few ties, no way to earn a living, and bona fide fears for their personal safety. Many people rightly feel that it's morally wrong to help the government deport a peaceful immigrant, but if the government is only trying to make immigration pay its way, citizens will have much more reason to cooperate with the government's enforcement efforts. They will be much less likely to engage in the spontaneous conspiracies to help undocumented immigrants than conscience obligates people to engage in now. They will be able to sincerely advise their undocumented immigrant friends to comply with the law, which they cannot do currently, since there are generally neither any prudential or moral reasons why our obviously unjust and absurd immigration laws should be complied with. The government would not abuse human rights by collecting somewhat higher taxes from immigrants than from citizens, to give it the resources to deal with some of the special challenges involved in adjusting to mass immigration. And just for this reason, a regime of taxing immigration would be much more possible for free societies to enforce in a thorough and satisfactory way than the desperately crude and over-simple dogma of total immigration sovereignty. But before we go deeper on policy options, I want to dude deep into the economics side of the question. Most readers will probably find the conclusion of this post, that we'll need to relax and accept a lot more immigration that we didn't necessarily invite, a bit unnerving. By the time we're done looking at the economic impact of the mass immigration of the future, you'll be eager to start.
Churchill once said that you can always rely on Americans to do the right thing, after they have exhausted the alternatives. Let's hope that proves true again, and try to use economics to look into the future that awaits the country if it surrenders to the limitations of democratic rule of law and embraces porous borders.
That future turns out to be remarkably appealing.