Immigration Wars: Forging an American Solution

by Jeb Bush

The president, for instance, has the power to determine whether illegal immigrants will be deported on a case-by-case basis. Further, the president can establish law enforcement priorities, as Obama did in prioritizing deportations of illegal immigrants who had committed serious crimes.

  In 2012, Obama invoked that executive authority to decree that hundreds of thousands of children who were brought here illegally by their parents could remain here lawfully for a specified period of time under certain prescribed conditions. The policy provided that the government would defer action against immigrants under the age of thirty-one who were brought to the United States under age sixteen; continuously lived here; were not convicted of a felony or a serious misdemeanor; and were students, high school graduates, or GED certificate holders, or were honorably discharged from the military. An estimated 900,000 people, mostly from Latin America and Asia, were eligible.7

  As a policy matter, we find much to commend in President Obama’s action. But he elevated ends over means, bypassing Congress and imposing by executive decree a policy that had been rejected through the legislative branch. In doing so, President Obama inflicted further damage upon prospects for comprehensive immigration reform. “Any long-term solution still has to go through Congress—and it has to be bipartisan,” argues Tamar Jacoby, president and CEO of ImmigrationWorks USA. “And President Obama’s brazenly partisan political act only makes that harder.”8

  Indeed, what many perceived as an act of bold leadership actually followed President Obama’s lack of leadership in promoting comprehensive immigration reform—or even the DREAM Act—when he had commanding majorities in both houses of Congress and after he had promised to do exactly that.9 Moreover, executive orders are fleeting. They easily can be repealed by future presidents, undermining the certainty and predictability that are crucial both to individual decision-making and to forging long-term solutions. As the Arizona chapter of the American Immigration Lawyers Association put it, “there is no guarantee that the policy will not change at a later date and potentially expose individuals to deportation.”10 Unilateral executive action may play well at election time—but enduring and comprehensive reform can come only through the legislative process, and that in turn requires strong presidential leadership.

  URGENT NEED, BECKONING OPPORTUNITY

  Given serious demographic challenges and increased competition from other countries, we cannot afford to wait much longer to fundamentally reform our nation’s immigration laws. Fortunately, the opportunity for bipartisan action seems at hand. Both presidential candidates in 2012 pledged that they would make immigration reform a top priority. Toward the end of 2012, members of Congress in both parties began taking steps to increase the number of highly skilled immigrants. And although twenty states introduced bills and five states enacted laws inspired by Arizona’s S.B. 1070 the year after it was signed into law, in 2012 such bills were introduced only in five states and none passed.11 It appears that the decline in the number of people entering the country illegally has eased public pressure for additional enforcement measures, which may help pave the way toward a more comprehensive reform effort at the national level.

  The two core principles we advocate—an efficient, workable system that recognizes the vital importance of immigration, coupled with genuine adherence to the rule of law—can form the foundation not only for bipartisan accord, but for sound and enduring public policy. Those two principles are mutually reinforcing. Advocating increased immigration without enforcing the rules undermines public support for immigration. Likewise, turning a blind eye to illegal immigration consigns those who come here illegally to shadow lives and constant fear, while at the same time fueling widespread backlash and resentment. At the same time, fixing the immigration system so that people who want to come here to work have a reasonable and predictable chance of securing that opportunity through legal channels would be the greatest possible deterrent to illegal immigration.

  Indeed, an enforcement-only or a secure-the-border-first policy is self-defeating. Unquestionably, increased border enforcement has contributed, along with economic conditions on both sides of the border, to greatly reduced numbers of illegal immigrants from Mexico. But it has also led to more illegal immigrants staying in the United States rather than risking multiple border crossings. From 1986 to 2006, the probability of illegal immigrants returning to Mexico decreased from 60 percent to around 15 percent. “Undocumented Mexicans are no longer coming to the United States,” writes Princeton University sociologist Douglas S. Massey, “but those already here are increasingly unlikely to leave.”12

  Let us be plain about this. There is one reason above all others that we have millions of illegal immigrants in our country: because under our current immigration system, there is no lawful avenue for them to enter the country. Unless they receive one of the small number of seasonal work visas or have the credentials to qualify for one of the equally small number of high-skilled worker visas, or unless they are a postsecondary student or a relative of lawful residents, there is simply no mechanism by which they can lawfully emigrate to the United States. So that saying “they should wait in line like everyone else” is hollow because there is no line in which to wait. The days in which people could lawfully emigrate to the United States just because they wanted to pursue the American Dream are as much a memory as is Ellis Island. If we do not provide a lawful mechanism for immigration for such people, we can expect a continued flow of illegal immigration during good economic times, no matter how many fences we build or how many obstacles we place in their path.

  Emphatically, the best solution to illegal immigration is a viable system of legal immigration. Tamar Jacoby says the current immigration system is like trying to impose a 25-mile-per-hour speed limit on highways: it’s illogical, it won’t work, and the enforcement efforts that would have to be expended to try to make it work would be costly and onerous.13 As the Council on Foreign Relations found in its independent task force report on immigration, “No enforcement effort will succeed properly unless the legal channels for coming to the United States can be made to work better.”14 Jacoby summed it up well in testimony before the Senate Judiciary Committee: “We must replace the old ‘nudge-nudge-wink-wink’ system—overly strict laws that we can’t and in many cases don’t even try to uphold—with a new bargain: realistic laws, enforced to the letter.”15

  Indeed, reducing illegal immigration by expanding and improving mechanisms for legal immigration would, by definition, capture and maximize the economic and fiscal benefits of immigration while minimizing the numerous negative consequences of illegal immigration. And if our immigration policy were freed from the shackles of predetermined visa quotas and allowed to respond to economic demand, it would help stabilize our economy and help restore the path to future prosperity. As the Federal Reserve Bank of Dallas put it, “By providing workers when and where they are needed, immigration raises the speed limit of the economy by keeping wage and price pressures at bay.”16

  When we look back at history and reflect upon the risks and sacrifices our ancestors endured to come to America, how can we imagine that a border fence or even harsh law enforcement will deter those who wish to come to America today for a better future for themselves and their families? Likewise, why would those who wish to come to America risk their lives to do so illegally if there were ample outlets for legal immigration? The very best way, and indeed the only sure way, to secure our borders is to create an immigration policy that is fair and predictable, and allows sufficient opportunities for lawful immigration. As Robert Zubrin, president of Pioneer Astronautics, puts it, “The nation needs a fence, but it also needs a well-functioning door.”17 Our economic future depends upon a reliable flow of energetic young working immigrants—what we call the aspirational class—who have fueled American growth and prosperity for centuries and who are absolutely vital to our future.

  It is upon the twin pillars of valuing both immigration and the rule of law that our specific reform pro
posals outlined earlier stand.

  4

  AN ENDURING DEBATE

  IMMIGRANTS ARE A POWERFUL PART of who we are. For most of us, being American means being the product of immigrants. All of us either come from immigrant stock or have been profoundly influenced by immigration.

  What is most remarkable about American immigration is that immigrants have steadily enriched our culture while also consistently embracing the values that attracted them. So while they have affected what Americans look like, along with their traditions, prosperity, and way of life, at the same time they have reinforced basic American ideals.

  Yet immigrants always have been controversial. For all that has dramatically changed in the centuries since our republic was established, one feature of American politics has remained stubbornly constant: the immigration debate. We have had the debate since our earliest years, and the terms and nature of the debate have remained largely unchanged. The forebears of modern immigration opponents argued 250 years ago that newcomers would pollute American culture by refusing to learn the language and adopt our customs, that they presented a danger to Americans and their values, that they would take jobs away from native-born Americans, and that they would impose an intolerable public burden. Public sentiments toward immigration have ebbed and flowed over the course of American history, and at times the opponents’ arguments have prevailed. Immigrants often have been convenient scapegoats for whatever fears Americans have harbored at different times in our history. But we have always ultimately resolved the debate in favor of immigration, to the great and enduring benefit of our nation.

  Even before Americans created their new nation, immigration critics sounded warnings that echo today. Annoyed over the voting habits of German immigrants, Benjamin Franklin complained in a 1751 pamphlet, “Why should Pennsylvania, founded by the English, become a colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion?”1 From the hindsight of history, such views seem silly today. And yet, similar sentiments have been voiced toward successive waves of Irish, Eastern European, Italian, Chinese, Japanese, and Latin American immigrants, among others.

  Immigration is one of the most important public policy issues, but the Constitution left it almost entirely to the vagaries of the democratic process. The Constitution confers power upon Congress to “establish a uniform rule of naturalization,” and the federal government has done so from its earliest years, establishing a five-year residency requirement for citizenship, which persists to this day. But the Constitution speaks only of naturalization and says nothing about immigration. As a result, during the republic’s first hundred years, national immigration laws were the exception rather than the rule. The notable exception was the Alien and Sedition Acts, enacted in 1798 by the Federalists, who were concerned, among other things, about political opposition from Irish and French immigrants. The laws gave the president unlimited power to deport any alien “whom he shall judge dangerous to the peace and safety of the United States.” The acts were largely repealed after the presidential election of Thomas Jefferson in 1800.2

  Immigration was largely unfettered throughout most of America’s first century. Our nation’s western expansion and the need for settlers, coupled with famines and political turmoil in Europe, led to massive numbers of immigrants from Ireland, Germany, and eastern and southern Europe in the middle decades of the nineteenth century.3 States rather than the federal government were responsible for most immigration laws. In the 1840s, for instance, in response to large numbers of Irish newcomers, Massachusetts and New York enacted laws taxing and otherwise restricting immigration.4 The laws were struck down by the U.S. Supreme Court in 1849 on the grounds that they violated the federal government’s power to regulate commerce.5 But it was not until 1875 that the Supreme Court ruled that the federal government had exclusive authority to set a uniform national immigration policy.6 The Court reasoned that the federal government could not maintain a consistent policy of foreign commerce if states were free to adopt conflicting immigration policies.

  The influx of Catholic immigrants gave rise to the first national anti-immigration movement, the so-called Know-Nothings, who exerted significant political influence during the middle part of the nineteenth century in the form of the American Party.7 But it was the one ethnic group that at the time was unlike any other that triggered the first major national immigration law: Chinese laborers brought in to help build the infrastructure of the American West. The completion of the Union Pacific and Central Pacific railroads in 1869 flooded the California labor market with ten thousand Chinese laborers, giving rise to an anti–Chinese immigration movement.8 In 1875, Congress passed a law excluding “undesirable” immigrants, including criminals, prostitutes, and Chinese contract laborers (called “coolies”). The Chinese Exclusion Act of 1882 forbade all Chinese laborers for ten years, prohibited Chinese immigrants from becoming citizens, and provided for the deportation of illegal Chinese immigrants. The law was renewed in 1892 and again in 1902, this time with no termination date, and lasted through World War II.9

  Early national immigration laws invested enforcement authority at various points in the State, Treasury, and Commerce departments. They also made English a requirement for naturalization,10 and forbade immigrants who were likely to become a public charge (the “LPC clause”), which became a central tenet of immigration policy.11 Traditionally, private charities—especially Catholic charities—rather than the government aided immigrants with assimilation and social services. They also helped inculcate immigrants with American culture and values. Many nonprofit organizations continue that work today, providing English-language and citizenship classes and helping immigrants navigate naturalization procedures.

  One recurrent contention has been that immigrants take jobs away from native-born Americans, and immigration policy consistently has reflected that concern. An 1885 law, passed at the urging of labor groups, forbade employers from recruiting foreigners abroad and paying for their passage to America for employment.12 But America’s borders remained largely open, and the opening decade of the twentieth century witnessed the highest level of immigration relative to population in our nation’s history, much of it passing through the Ellis Island receiving station, which opened in 1892.

  During the first two decades of the twentieth century, the large number of immigrants from southern and eastern Europe, combined with concerns about terrorism culminating in bombings by anarchists in eight cities, turned American sentiment broadly against immigration.13 In response, control over immigration was further centralized in the federal government, and the laws reflected antipathy toward those immigrants. The Emergency Quota Law of 1921 imposed an immigration cap of about 350,000 per year and limited immigrants from each country to 3 percent of the number of people living in America from that country in 1910, thereby creating preferential treatment for immigrants from Western Europe. The numbers and quotas were tightened in 1924. Immigrants from the Western Hemisphere were exempt, as were wives and unmarried minor children of male U.S. citizens. Also during the 1920s, a consular visa system was established, a process was established for temporary visitors, and the U.S. Border Patrol was created.14

  One of the principal obstacles to immigration was the federal immigration bureaucracy itself, which was largely controlled in its early years by labor unions, which were virulently anti-immigration during much of the twentieth century and often remain an impediment to reform today. The American Federation of Labor’s 1928 convention resolved that “the desire for cheap labor has acted like a cancer . . . destroying American ideals and preventing the development of a nation based on racial unity.”15 As historian Roger Daniels observed, the immigration service (which became the Immigration and Naturalization Service in 1933), acting at the behest of labor, “lobbied against the interests of legal immigrants, especially those of color and those who seemed to them un-
American.”16

  The nativist impulses of the late nineteenth and early twentieth centuries were reflected in laws beyond immigration. California, for instance, passed several measures designed to prevent Chinese immigrants from earning a living. San Francisco passed an ordinance forbidding laundries that were constructed of wood, even if the fire warden approved them. The law was aimed at Chinese business owners whose establishments were made of wood. One of them, Yick Wo, defied the law and was fined one hundred dollars, then imprisoned when he failed to pay it. In a landmark decision, the U.S. Supreme Court struck down the ordinance, declaring that “the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”17 Yick Wo’s bold stand helped protect freedom of enterprise for future generations of Americans.18

  A short time later, several states, alarmed by the proliferation of immigrant private schools, passed laws forbidding instruction in foreign languages and some even prohibiting private schools altogether.19 Those laws were struck down by the U.S. Supreme Court in a trio of decisions in the 1920s that remain cornerstones of our constitutional guarantee of educational freedom.20 But relics of the nativist era remain in the form of the so-called Blaine Amendments—forbidding the appropriation of public funds for “sectarian schools”—which are contained in about two-thirds of state constitutions. While they appear benign, they were aimed at suppressing Catholic schools and today are wielded by opponents of education reform to challenge school choice programs.

  The Depression put a temporary end to the immigration debate, with more people leaving the United States than entering it during the five years between 1932 and 1937.21 World War II witnessed huge variations in immigration policy. On the one hand, the United States responded to the Pearl Harbor attack by placing 120,000 people of Japanese descent—two-thirds of them U.S. citizens—in internment camps, one of the most shocking deprivations of civil liberties in American history. On the other hand, the Chinese Exclusion Act was essentially repealed.