Don't Build Trump's Wall. Amend the Constitution.
I support expanding legal immigration. I believe in welcoming refugees. I think deporting 11 million illegal immigrants is cruel and impractical, some form of amnesty is inevitable and wise, and Donald Trump’s wall on the border with Mexico would be a $25 billion boondoggle.
I also believe that the U.S. needs to pass a constitutional amendment making it impossible for anyone living in the country illegally after that point to acquire legal permanent residency or citizenship, including for their children born here.
As part of a package of comprehensive immigration reforms, such an amendment could both curb illegal immigration and help heal one of the biggest partisan rifts facing the country. It would remove a huge incentive for illegal immigration. It would reinforce the importance of citizenship, bolster public support for legal immigration, and honor the 4.5 million would-be immigrants waiting patiently for their green cards. And it would affirm that we are a nation of laws, not loopholes -- surely one reason many immigrants are attracted to the U.S. in the first place.
Opponents will ask if this is necessary, arguing that the problem is fixing itself: The U.S. illegal immigrant population peaked in 2007. But how glad should we be that it has “stabilized” at 11 million? That’s basically unchanged since 2009, and still about three times its level in 1990. Annual apprehensions at the southern border are below their pre-recession levels, but the Border Patrol still intercepted 408,000 people in the 12 months ending in September. And despite much better enforcement, these apprehensions likely represent only about half of all those who cross the border illegally.
Moreover, as crises around the world have metastasized, and migrant smuggling has become a sophisticated global enterprise, the range of nationalities illegally crossing the border has expanded. With no end in sight to strife, conflict, poverty, and repression in Afghanistan, Syria, Libya, Central America, China, India, Pakistan, and swathes of sub-Saharan Africa, you can expect that trend to continue, and new pipelines for illegal migration into the U.S. to emerge. Let's also not forget that up to 40 percent of the illegal population in the U.S. are visa over-stayers, not border-jumpers -- so building a bigger wall is an imperfect solution.
Unless you have a heart of stone and $300 billion to pay for deportations of Biblical dimensions, the only just and rational solution to the existing illegal population is some form of amnesty. But here’s the problem: Without a change in laws and enforcement, one amnesty just creates a need for another. In 1986, when President Ronald Reagan signed a bill on immigration reform, he enabled nearly 3 million illegal immigrants to legalize their status. Here we are 30 years (and several other smaller amnesties) later and the illegal population is many times that.
There are many reasons for the post-1986 surge in illegal immigration, from lax border enforcement to unclear rules and weak penalties for hiring illegal workers. But regardless of which explanation you favor, another amnesty, however necessary, would encourage the belief among those seeking to enter the U.S. illegally that, eventually, they'll acquire legal status for themselves and their families.
Here's where a constitutional amendment comes in: By enshrining the principle that those who enter the U.S. illegally (or are here because they've overstayed their visas) can never attain legal status, it eliminates the prospect of future deliverance. If you're living here illegally, you're doomed to life in the margins and shadows.
Such an amendment would fall most heavily on those who couldn't qualify for any form of legal entry into the U.S. -- generally those of lower skill levels. That's not a bad thing. As Harvard University economist George Borjas has argued, low-skilled immigration, especially the illegal variety, hurts the fortunes of U.S. natives on the lowest rungs of the socioeconomic ladder, "redistributes wealth from those who compete with immigrants to those who use immigrants," and imposes a net fiscal cost on the native population in terms of government assistance.
Of course, such an amendment by itself wouldn't end illegal immigration. For many illegal workers, jobs that enable them to send money home to their families are worth the risk. And there's no question that such an amendment would lead to cruel separations, injustices, and bitter twists of fate.
But such an amendment might also deter vulnerable people from putting themselves in harm's way, like the countless Central Americans killed, robbed or injured on their journey north after hearing (often from migrant smugglers) that planned changes in immigration law might mean they'd be able to reunite legally with family members already in the U.S. It would also provide meaningful proof to Americans disturbed or disadvantaged by illegal immigration that their concerns are being taken seriously.
Such an amendment could be linked to passage of comprehensive reforms that include a path to legal residency and, eventually, citizenship for those illegal immigrants who have no criminal record. There's no getting around the need for some kind of amnesty. At the same time, if that isn't accompanied by measures to keep future border-jumpers from legalizing their status, the U.S. will be stuck in a Santayana loop, condemned to repeat a cycle that further corrodes the public’s faith in their country's ability to protect its borders.
Linking the two measures would also increase the odds of passage for both. Republicans would find backing an amnesty easier if they could argue convincingly that it won't happen again, and that the fight against illegal immigration has been strengthened. Democrats might sign onto an amendment blocking future legal status because few want to be on record supporting illegal immigration -- and because an amnesty will likely swell the ranks of their voters. To sweeten the pot further, and reward those who have actually abided by the law, any such bargain should also clear up the huge backlog of folks waiting to get their green cards.
Constitutional amendments rarely come easy. But given the stakes involved for both sides, this one is worth pursuing -- and after the political earthquake we’ve just witnessed, who’s to say it couldn’t happen?
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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