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Five Mistakes Some Conservatives Are Making on Immigration Policy

The purpose of this essay is to suggest that there are five mistakes some conservatives are currently making on immigration policy.  The first is a sin of omission:  Some are so concerned about levels of immigration—and, in particular, the problem of illegal immigration—that they are neglecting the more important task of ensuring immigrant assimilation.  There are also three discrete constitutional issues (each with policy implications) on which some conservatives have lined up on the wrong side:  opposing birthright citizenship, supporting racial profiling, and supporting state enforcement policies that are at odds with federal enforcement policies.  Finally, and in some ways most importantly, some conservatives have failed to strike the right, pro-immigrant tone.

Let me stress up front that these are not mistakes that all conservatives are making.  And let me stress further that while the mistakes are being made by some conservatives they are not conservative mistakes—to the contrary, in my view the mistakes would be avoided if conservatives were careful to adhere to their principles.  The challenges in this area are important but not so severe as to justify suspension of those principles; indeed, were it not for the specific problem of illegal (versus legal) immigration from one particular country (Mexico)—a problem that varies in severity from year to year—there would be nothing like a crisis at all.

1. Neglecting Assimilation

Reasonable people can differ on what the right level of legal immigration is, and, for that matter, on how strictly to enforce the immigration laws.  These are issues of balance more than principle.  Few think there should be no immigration, and few believe there should be open borders.  Likewise, everyone would prefer it if there were no illegal immigrants, but no one seriously thinks that the ideal is attainable except at an inordinate cost of money and individual liberty.  So a balance has to be struck.  On this website, Linda Chavez and others will be discussing why relatively high levels of immigration make sense as an economic matter, and pose little threat as a social matter.

Meanwhile, however, assimilation is the unaddressed issue that deserves to be addressed, no matter what level of immigration we have. If the American economy needs relatively high levels of immigration (and we believe it does), and if social conservatives are right to be concerned if there are large numbers of unassimilated immigrants (and we believe that this can be a legitimate concern), then we must do a better of job of figuring out how to improve our assimilation policies.

It should be acknowledged at the outset that a successful immigration policy will require some use of generalizations. At some level we must look at immigrants group by group, rather than assuming that an immigrant is an immigrant is an immigrant. That said, however, it does not follow that the U.S. can go back to a quota system where immigration from some countries is welcomed more than immigration from other countries.  On the one hand, of course there are some cultures that are more easily assimilable than others, and there are some individual immigrants who are more welcome than others. On the other hand, it cannot be the case that immigrants from any country are completely unassimilable, nor is it realistic to think we will begin barring all immigrants from any country for no reason other than their national origin.  It is too late in the day, and too inconsistent with the American Creed, to have a racially exclusive immigration policy.  We cannot announce, “People from Trashcania are, by and large, not welcome, because they come from a hopelessly backward culture.”  No: The task is to have a realistic, market-driven ceiling on immigration (recognizing that different sectors of the economy have different immigrant needs), standards that are nonracial and apply to all countries, and a better policy for assimilation.

We should welcome people who want to come here, work hard, and build better lives for themselves and families. Instead of turning such people into temporary sojourners with no stake in our society, we ought to do what we’ve always done: Turn them into good Americans. 

And so here, in case you were wondering, are the ten basic principles to which all Americans must subscribe. They are not outrageous, but they are irreducible (and they apply to all of us, native and immigrant alike):

1. Don't disparage anyone else's race or ethnicity;
2. Respect women;
3. Learn to speak English;
4. Be polite;
5. Don't break the law;
6. Don't have children out of wedlock;
7. Don't demand anything because of your race, ethnicity, or sex;
8. Don't view working and studying hard as "acting white";
9. Don't hold historical grudges; and
10. Be proud of being an American.

This list was first published in an NRO column  a decade ago, and it is fleshed out in my Congressional testimony here.  For this essay, I am not going to go into further detail; my point is just that conservatives should be spending more time thinking, writing, lobbying Congress, and working with the little platoons regarding assimilation than they are now.

2.Opposing Birthright Citizenship

The Fourteenth Amendment begins, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States ….”  So, unless you think that children born to illegal immigrants are not “subject to the jurisdiction” of the United States, then the Fourteenth Amendment provides for birthright citizenship.  It would take some really good legislative history to establish that, and it doesn’t exist.   But don’t take my word for it:  Read the exchange on this website between my friends Linda Chavez and John Eastman—and the more extended treatment by Garrett Epps to which Linda links (James Ho has written well on this topic, too)—and make up your own mind.

But of course the Constitution could be amended if birthright citizenship were a big enough problem, so let’s explore whether it is.  I will admit that it can result in goofy outcomes.  Suppose, for example, that a baby is delivered on an airplane to a Russian lady who is in American airspace as she flies from Kamchatka to Vancouver over the Aleutian Islands, or on a boat as she sails there and has strayed for a few moments into Alaskan waters.  Isn’t it silly to consider that baby an American citizen?

Yes, but the fact that such bizarre events can occur is not enough to scrap an approach if it makes sense in the vast majority of circumstances.  And as conservatives we recognize that, unless it is necessary to change, it is necessary not to change.  America has been hugely successful over the years in assimilating its immigrants and it is reasonable to assume that birthright citizenship has been part of our winning formula. (One reason why I am left cold by the argument that America’s birthright-citizenship approach is unusual among nations: Since when does our being unique bother us, especially given our unique success here?) Unless there is some particular problem that can be ascribed to birthright citizenship, we ought not be changing it, let alone monkeying around with the Constitution in order to do so.  

As I understand it, the asserted problem is not Russian ladies giving birth in airplanes but that there are lots of babies born in the U.S. to two illegal alien parents—which is true—and those babies should not be U.S. citizens.  And, as I further understand it, there are two sets of reasons why this might be thought undesirable:  First, that it attracts or makes it harder to deport the parents; and, second, that there is something objectionable about the child being treated as a citizen.  

Let’s start with the second objection.  Remember that the person who is being declared a noncitizen is an infant who has no control over where he or she is born or over the legal status of his parents.  He grows up in the United States (if he doesn’t, then no problem, right?) and knows no other country; he may well be unaware of his parents’ illegal status; and yet one day he learns that he is not an American citizen, so he must—what, go back?  No, wait, “back” is not the right word. He must go to a foreign country for the first time that happens to be where his parents are from (assuming they are both from the same foreign country, and that his parents’ country will take him).  And where is the justice in that?  What if the parents are now in the country legally—indeed, they may by now be citizens? It’s quite a mess that their child must still be considered a noncitizen, isn’t it?  As for the argument that these babies can claim various social services, won’t those social services be claimed whether the children are citizens or not?  The two most costly programs available to illegal immigrants now are education (by virtue of the Supreme Court ruling in Plyler v. Doe) and emergency health care; it is not at all clear that either could be denied under current law even if birthright citizenship disappeared.  
Now let’s turn to the first objection—that birthright citizenship attracts illegal immigrants and makes it harder to deport the parents.  The problem is that there is little evidence that the prospect of having U.S.-citizen children acts as a magnet, helping entice people to enter the country illegally.  According to a Pew study this year, there is a relatively long lag time between when people enter the country and when they have babies, which suggests that giving birth on U.S. soil is not the principal enticement for women who come here illegally.   Economic reasons far outweigh other motives for coming to the United States, for both legal and illegal immigrants.   
The term “anchor baby,” which is often used to describe the citizen children of illegal immigrants, suggests that such births make it harder to deport illegal aliens, and thus also make it more attractive for them to sneak into the country. If that were true then that might indeed be a problem (though whether it is a big enough problem to justify changing the Constitution would be another question).  But the premise is false.  According to a study by the Department of Homeland Security , over the last ten years, 100,000 parents of U.S. citizen children have been deported, nearly 5 percent of the total number of deportees during that time period.  So the anchor baby isn’t much of an anchor, especially since he cannot sponsor his parents until he is 21 years of age.  

Speaking of which, is there any evidence that, 21 years down the line, these now-grown babies are going to show up at the border, and claim a right to enter the country?  If some do, is that such a big problem?  Is there further evidence that they are dragging their parents—many of them probably back in the United States, legally or illegally—into the country with them?  If the latter is a problem, you can fix it more directly by changing the chain-migration statutes rather than by changing the Fourteenth Amendment. 

Here’s another way to look at this issue:  Either the parents stay in the U.S. or they don’t.  If they stay in the U.S.—and especially if they eventually attain citizenship status—isn’t it odd that their children should not be citizens?  And if they leave the U.S., how likely is it that their children will assert U.S. citizenship? 

Finally, let’s ask how the new, non-birthright-citizenship rule ought to be worded.  I suppose the simplest fix would be to add to the end of the first sentence in the Fourteenth Amendment:  
“; provided that, no person whose parents at that person’s birth are both noncitizens shall be considered a citizen by reason of being born in the United States.”  But how would this be enforced?  Well, to deport the U.S.-born-noncitizen you would have to show that his mother and father were here illegally.  But once you’ve done that, you would presumably want to deport them, too.  So you have to show exactly the same thing that you did before (the parents were here illegally), and you get the same result that you did before (you deport all of them), except that now you can keep the kid from coming back ever, rather than just keeping him out until he is 21.  Is that worth amending the Constitution over?   One last thing:  Presumably hospitals would then be required to demand that the parents show proof of U.S. citizenship as part of the birth-certificate process (couldn’t that be done now, by the way?), which would affect everyone, including native-born Americans.

3.Supporting Racial Profiling

I had a longish discussion earlier this year with several conservatives on National Review Online about whether Arizona officials ought to use racial profiling in their enforcement of the new state law there.  (I hasten to add that, in its final version, the Arizona law does not mandate—or even permit—such profiling, which is much to the state’s credit.)  For those who are interested, here is the exchange:

My basic point in the exchange was that conservatives ought to be reluctant to endorse racial profiling by the state police in the illegal alien context for the same reason that they dislike it when university admissions officers, municipal contracting officials, and police and fire departments use racial preferences in their selection procedures. In all these instances, the government is treating people differently because of skin color or what country someone (or someone’s ancestors) came from. Constitutional problems aside—and they are considerable—in an increasingly multiethnic and multiracial society, it is untenable to have a regime that sorts people by race and ethnicity, and treats some better and others worse on that basis.
Thus, even in other law-enforcement contexts, I have long opposed racial profiling (although I’ve also made clear that a lot of what is called racial profiling by the Left really isn’t, because it is either mis-defined or the facts don’t support that it is being used). I’ve written about the subject here,here,here,here,here,here,and here, for example.  I have also written that an exception should be made in the terrorism context: Law-enforcement officials are entitled to be cut some slack when they are trying to stop mass murder and win wars (here, too, I would also note that what is sometimes labeled racial profiling isn’t, at least where we are dealing with members of an identified and particular terrorist enterprise, as discussed here).

But I have stood by my earlier position that the costs of official racial discrimination are not justified just because the police may think it gives them an edge in fighting street crime.  And it is certainly not justified when the target is suspected not of mass murder, not of dealing drugs, but of nothing more than coming to this country (yes, illegally) to find work and a better way of life for himself and his family.

Anyway, I will not rehash here all that I’ve written in the latest NRO exchange and elsewhere.  I will just say again that it is poison to the American body politic and quite at odds with the principle of E pluribus unum for the government to stop people, or treat them differently after they have been stopped, because they share the ethnic appearance of other people who live in a country that sends us a lot of illegal immigrants, and that defending such discrimination makes it much harder to take conservatives seriously when we oppose politically correct discrimination.  It is not true that I don’t think illegal immigration is a big problem, but I don’t think that the way to fight it is through institutionalized racial and ethnic discrimination.

4.Backing State (versus Federal) Immigration Law-Enforcement Policymaking

Conservatives ought to believe that immigration law-enforcement policy should be determined by the federal government, not by a variety of state and local jurisdictions.  I know, the rejoinders are (a) since the federal government is not stepping up to the plate, the states are entitled to, and (b) all states like Arizona are doing is ensuring that federal law is enforced.

But neither answer will do.  The federal government may be doing a lousy job, but its action or inaction or mix of the two is, de facto, the national policy.  It will always be the case that some states will be unhappy with federal policy, and they will often be able to characterize it as an abdication of what the federal government “should” do or what Americans “demand” that it do.  That cannot justify state interference in what has to be a nationally-established policy, any more than federal failure to, say, naturalize citizens fast enough would justify state’s stepping in to do the job instead.

And immigration policy, like any federal policy, is made by more than just passing a law; it is also made by the way that a law is enforced, or not enforced.  The way that immigration law is enforced is part of the federal government’s foreign policy; it is not done mechanically.  Consider that we don’t let state and local jurisdictions have a say in how even a declared war is fought.  Conservatives don’t like the idea of sanctuary cities, in part because it interferes with federal policy, and they ought to be reluctant to cede to the states authority to insist that federal immigration-enforcement policy be more aggressive, too.

Now, this is not to say that states shouldn’t have a role in immigration enforcement, and indeed federal statutes contemplate that (for this reason, I am not taking a position here on whether, for example, Arizona’s law is actually preempted or not).  Nor is it inappropriate for affected states to pressure the federal government to make immigration policy—which, after all, has both domestic and foreign ramifications—in a way that serves their residents’ interests.  I’m just saying that the reflexive tendency among some conservatives lately to back state officials over federal ones should be reconsidered.  In other contexts, I’m all for the instinct to favor private over local, and local over state, and state over federal—and certainly the instinct to favor Jan Brewer over Barack Obama—but not here.

Some conservatives may be happier in the short term with the results they get by focusing their efforts on immigration law enforcement at the state level, but in the long run this is a bad approach.    

5. Failing to Strike a Pro-Immigrant Tone

My last point is that conservatives need to do a better job in the tone of their immigration criticism.  

If someone wants to come to the United States, looking for work and a better life for himself and his family, we should not be happy if we have to turn him away, or even if we just have to tell him he will need to get in line and wait on the bureaucracy.  That message may be necessary—for  economic, assimilation, and national security reasons—but there is no reason to be gleeful or vindictive, or even angry, in delivering it.  Rather, it’s a classic example of something to be said in sorrow rather than anger.
A lifeboat must not be overloaded.  But telling someone that there’s no room for him is not a message that anyone should be happy delivering.  Having U.S. troops stationed at the border to keep poor people out is not anything to celebrate.
So every time conservatives advocate turning someone away, they need to try to convey that this is not a happy task.  To the contrary:  It’s great that people want to come here, and too bad that they can’t all come at once.  (Look at it this way:  Wouldn’t we feel worse if lots of people hated our country and were clambering to get out—like the East Berliners of old?)  But rules are rules, and the immigration rules are necessary rules.    
There’s an obvious reason why conservatives have to take special pains here.  It is unfair that the Left is eager to paint us as being anti-Latino, but the reality is that it will do so and that a lot of people for a lot of reasons—not all of them unfounded, unfortunately—are inclined to accept that there is something to the Left’s accusations.  To be oblivious to this reality makes us less credible, besides being politically ill-advised.
I hasten to add that the Left has its own oblivious-to-reality problem here.  There are strong and legitimate concerns about border integrity and this, in the main, is what drives statutes like Arizona’s.  Of course there cannot be open borders; even apart from national security problems, there are limits to what our economy needs and our society can assimilate.

But this brings us back to where we started:  Conservatives should spend more time discussing and thinking about assimilation, recognize the economic benefits of immigration, and scrap the more dubious legal arguments now being used to oppose it.

Roger Clegg is president and general counsel of the Center for Equal Opportunity.