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In defense of weak immigration enforcement


I was thinking about putting up a post in response to Kevin Drum’s unfortunate defense of aggressive border controls. But I moved slowly, and Matthew Yglesias and Chris Bertram came along and made many of the points I wanted to make.

I want to elevate, though, a wonderfully succinct and important point made by lizardbreath in the comments to the crooked timber post, in response to the question of what a ‘principled defense of weak enforcement’ would look like:

Any level of enforcement that would actually keep large numbers of undocumented workers out of the country is either practically or at least politically impossible—there’s too much support for having a desperate class of workers with no legal rights in the country.

So if effective enforcement isn’t an option, the choice between ‘strong’ and ‘weak’ enforcement is a choice between harassing and immiserating undocumented immigrants more or less. At which point ‘less’ looks like a principled position to me.

The thread continues with a lot of people talking past each other; many articulating some version of the claim that ‘we need strong immigration enforcement in the service of certain progressive policy imperatives,’ and others responding that strong, but also humane and non-civil liberties damaging immigration enforcement is not possible.

This general point seems to be simultaneously acknowledged and ignored in much of the debate about immigration. There is, of course, a straightforward and simple way of thinking about state capacity that would suggest that a determined and unified version of the US state could enact and enforce a set of policies that would go a long way toward meaningful enforcement of immigration laws (whether this could be done without significant damage to civil liberties is another matter). But thinking about state capacity in a way that assumes state unity wishes away an important impediment to the achievement of state capacity. Obviously, business interests in immigrant labor, including (and in many cases especially) undocumented immigrant labor, is a significant part of the story. But it is hardly the only one. Other reason become clearer when we avoid overly simple conceptions of state capacity.

Another possible reason: Seeing borders like a state (reference to this and see also this). According to states, Borders are mere lines. But borders engender borderlands. There’s a fairly extensive literature on borderlands, and one of the central findings in the historical study of borderlands is that the collective identities and interests of borderland populations are often at odds with the agenda of the larger state, but the larger state must rely on borderland populations to a considerable degree. Unequal borders produce particular stresses on borderlands but also multiply opportunities–there’s a strong tendency for unequal borders to be among the most unstable and least amenable to strong enforcement.

Relatedly, the narrative of a possible strong/effective/humane border regime necessarily ignores the ways in which different parts of the state are likely to get in each other’s way. In States Against Migrants, Antje Ellerman (using the US and Germany as her case studies) details the says in which the politics of migration policy change dramatically at the legislative, executive, and bureaucratic levels. As you move from legislative to executive to bureaucratic, the incentive structure and pressures shift away from enforcing immigration controls uniformly and forcefully. This isn’t a dynamic that can be easily fixed by passing a better law.

Kevin Drum’s position–make policies more just and enforce them vigorously but humanely–doesn’t sound anywhere near as appalling or insane as the “build a giant wall!” crowd. But they share an important similarity. Knowingly or not, both are calling for the state to ‘perform’ a version of sovereignty that is essentially fictional. Unfortunately, this performance is not benign. While it won’t accomplish it’s stated goals, it will have a variety of other effects, many of which are predictable. Some of the entirely predictable consequences of the increase in border enforcement on the US/Mexico border since the early 90’s have been: significant enrichment of a human traffickers and coyotes in the borderlands, the inflammation of local anti-immigration vigilantes in the US, increasingly long stays in the US for Mexican migrants (as border crossing became more expensive and dangerous), and increased rate of death for border-crossers. We know we can do this. We have significant reasons to doubt we can do what Drum wants us to try to do. You can’t evaluate  and defend a policy based on the latter, while ignoring the former.

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  • jon

    Current immigration policy and action is insane and must change. But a state also needs to establish some level of control over access across borders. NAFTA hasn’t really delivered on its implicit promise of providing better labor to local populations, and thus reduce illegal immigration. Declines in immigration seem directly related to the current economic collapse. Though some immigrants are returning home due to reduced jobs and greater enforcement, many others seem simply to have gone to other states.

    We’ll need to see how these ‘borderland’ areas respond to greater restrictions on the employment of illegal aliens. Arizona seems to have experienced a lot of problems, and now I’m hearing that crops can’t be harvested in Alabama. In classical economics, wages would be increased until workers could be attracted to do the work desired, but it seems that farmers are happy with crops rotting in the fields. Living wages for farm workers would be a very good thing, but would certainly translate into higher food prices for all.

    • kth

      The crops are rotting in the fields, not because the farmers are unwilling to pay more, but because they are unable to. That is, they would fetch less for their crops than they paid to harvest them (due to worldwide competition, including substitution effects). We get pretty much all of our bananas from South America, no reason we couldn’t get our peaches from there as well.

      Over time the farmers will adjust, even to the most stringent of enforcement regimes. But those adjustments would probably take the form of mechanization and switching to less labor-intensive crops (including those genetically modified for that purpose). It’s unlikely that immigration enforcement will ever result in appreciably higher wages for farm workers and those with similar skill sets.

      • djw

        Or, once the intense scrutiny and public attention goes away, various officials will signal that enforcement of the new laws will be relaxed, and something approximating the status quo ante will return.

      • Peter Schaeffer

        Illegals are just a bailout / handout for uncompetitive enterprises. It’s funny how so called “free market” libertarians are willing to see the entire manufacturing economy of the United States go down the drain in the name of “free trade” and “free markets”, but when some grower can’t compete in the labor market, overt criminality (hiring illegals) become OK.

        By the way farmers have a guest worker program (H2A). They just don’t like it because they have to actually take care of the workers. The horror.

        Philip Martin is America’s leading authority on agricultural labor. I quote

        “Proponents of a new temporary worker program argue that increased immigration enforcement would lead to fewer illegal agricultural workers and, as a consequence, the American consumer would face a major increase in the cost of food. This is factually incorrect according to experts. Dr. Philip Martin, a leading academic authority on agricultural labor, notes that American consumers now spend more on alcoholic beverages on average than they spend on fresh fruits and vegetables.1

        An average household currently spends about $370 per year on fruits and vegetables. If curtailing illegal alien agricultural labor caused tighter labor conditions and a 40 percent increase in wages, the increased cost to the American family would be $9 a year, or about 2.4 cents per day. Yet for the farm laborer, the change would mean an increase in earnings from $8,800 to $12,350 for each 1,000 hours of work (25 weeks if the worker worked 40-hour weeks). That increase would move the worker from beneath the federal poverty line to above it.”

        See also http://www.cis.org/GuestworkerPrograms-AmericanAgriculture http://www.cis.org/AmericanLaborMarket%2526Immigration http://www.cis.org/articles/2006/guestworkertranscript306.html

        • prado

          We don’t have free trade in agriculture. Tariffs and non-tariff barriers keep out or make crops from the developing world like cotton, rice, and sugar uncompetitive, ironically making low-paying agricultural and service jobs in the U.S. lucrative for third world would-be farmers and farm hands.

    • Peter Schaeffer

      See my comments below. The impact on food prices would be trivial. A combination of mechanization (far more common in other countries), higher wages, and crop shifting would keep America’s farms humming with no illegals.

      Food might be negligibly more expensive. However, illegals and their families are fantastically expensive (welfare, food stamps, WIC, Medicaid, education, crime, etc.).

      There is nothing cheap about cheap labor. More like “privatizing profits, socializing costs”.

    • Peter Schaeffer

      Any evidence that removing illegals has actually hurt Arizona or Alabama? Not anecdotes about some farmer who lost his slaves. Real numbers about GSP declines and more relevantly, GSP per-capita falls.

      All of the serious data I have seen shows labor markets functioning properly with better wages and working conditions for citizens. Of course, losing illegals means reducing welfare costs on a large scale.

      Illegals are the societal equivalent of a migraine headache. You don’t miss it when its gone.

      • Malaclypse

        Illegals Illegals are the societal equivalent of a migraine headache. You don’t miss it when its gone.

        “Illegals” is a marvelous rhetorical flourish. If you tweak just a little:

        Mexicans are the societal equivalent of a migraine headache. You don’t miss it when its gone.

        Blacks are the societal equivalent of a migraine headache. You don’t miss it when its gone.

        Jews are the societal equivalent of a migraine headache. You don’t miss it when its gone.

        then you see what this is really about.

        • Peter Schaeffer


          Illegals are (wait for it) “illegal”. They have no right to be in America. Not that hard a concept.

          • Malaclypse

            Nouns are adjectives? Let me guess, you believe English should be the official language, right?

            Trolls are the bloggish equivalent of a migraine. We won’t miss you when you are gone.

  • Dan Miller

    It sounds like your position is that it’s inevitable that there will be a population in the U.S. that’s not protected by the state (in the form of minimum wage laws, etc), and that the only question is whether this population will be harassed by employers and goverment, or employers alone. That seems kind of bleak to me–and it seems like the only real solution is increasing legal immigration.

    • Peter Schaeffer

      Don Miller,

      See my other comments. Enforcement is easy. Just try.

      The very modest efforts to date have produced significant results. E-Verify and SB1070 (nationwide) would send the vast majority of illegals home permanently.

      Note that farmers have the H2A program for temporary labor. They don’t need illegals. They prefer illegals because they can be used as disposable labor. H2A actually requires farmers to take care of their workers.

      See “Hiring Locally for Farm Work Is No Cure-All” for a story about a farmer who used H2A successfully for years (apparently).

  • wengler

    NAFTA formalized the arrangement that capital can merrily cross borders without nary a worry, while people must stay in one place and accept peonage.

    If you are going to create policies that displace tens of millions of people by destroying their agriculture with cheap corn and then pushing them up to the border to work in giant factories, then don’t be so surprised when they cross the border to make 80 bucks instead of 5 bucks a day doing really shitty work with no rights. They already have no workers’ rights in their countries. The US didn’t seem to care though when agreeing to a free capital flow from the slave wage centers of the world.

    This is a great issue for the 1 percent because it allows them to exploit labor while turning the 99 percent against some of the poorest, hard-working people in the society. Classic divide and conquer.

    • djw

      I don’t disagree with any specific point here, but you overstate the role of NAFTA in this telling of the story. To be sure, NAFTA played a central role in the upheaval of some rural agricultural economies, primarily in Southern Mexico. But the culture and economy of substantial and regularized temporary labor immigration in Southern Mexico were already over 100 years old in many of those communities, with labor immigration to the US playing a major role since at least the 40’s. Jeffrey Cohen is very good on this.

      • wengler

        Well, the other side of the story is the end of the open-door policy on immigration and the acceptance of employers to hiring undocumented labor. I realize migrant labor is nothing new, but the contrast in living conditions has become remarkably rigid, even while capital flows unhindered.

        • L2P

          Didn’t we end the open door policy way back when we were worried about swarthy Southern Europeans? I’m pretty sure it was way before NAFTA.

          • djw

            Wengler refers to the de facto (relatively) open door policy towards the South. While restrictions on Mexican immigration did exist, and were even occasionally (and more or less randomly) enforced from the 1920’s through the beginning of the 1990’s, the last 20 years has seen an effort to control the border that is far, far greater than anything proceeding it.

          • Peter Schaeffer

            L2P. Actually, the immigration reforms of 1917, 1921, and 1924 allowed for unlimited (legal) immigration from the Western Hemisphere. Mexicans illegally entered the U.S. in large numbers and were deported on a large scale in the 1920s, 1930s, and in the 1950s.

            The 1950s crackdown was the largest. Eisenhower ordered an enforcement effort. 1-2 million illegals were removed in 90 days with just 1000 agents.

      • Peter Schaeffer


        You are understating the impact of NAFTA on Mexico. The Mexican government used NAFTA to devastate the rural population of Mexico as a matter of intent. Check out the details of how NAFTA allowed American corn to enter Mexico. The gains to the U.S. were tiny. The costs to poor farmers in central Mexico were quite large.

        You can argue that the Mexican government was forced to allow U.S. corn into Mexico as part of NAFTA. However, the Mexican government dropped the trade barriers to U.S. years in advance of the schedule required by the treaty. That shows intent.

        The bottom line is that Mexico had a policy of displacing its own people. Why? Check out the work of Fredo Arias King on the subject (a Mexican writer).

        In exchange for very modest gains to U.S. corn producers America now has millions and millions of high school dropout illegals to support.

        Bad trade. NAFTA was a lose-lose for American and Mexico.

  • L2P

    What I am curious about is what the effect of “less” enforcement would be. When we had less immigration enforcement and border control my history books talk about how much more expensive and difficult it was just to travel. IIRC, the peak was under 1.5 million immigrants in a year. We’re getting that now with “strong” immigration enforcement (IIRC, half our illegal).

    Today there can’t be less than a few hundred million people with the money and desire to immigrate today (I’d bet more, many, many more), and the only reason they don’t is that we have the “more” enforcement. If immigrating to the US meant buying a ticket to Tijuana and walking into San Diego, are we looking at adding a few million to the it think 7 million undocumented we have now? Or are we looking at doubling our population in a decade?

    Don’t get me wrong, I know it’d be fun to let Gates have a fleet of Bangladeshi servants and feel just like Daddy Warbucks, but what’s the answer?

    • djw

      You’re confusing weak enforcement of existing regulations with an open borders policy. I’m not advocating the latter (in this post at least). I’m making a non-ideal case for the status quo, with weaker enforcement. More like the 70’s and the 80’s, when the difficulties of global travel weren’t substantially different then they are now. My suspicion is that we’d have roughly the same amount of undocumented immigration from Mexico and points South (which seems to track economic circumstance), without a lot of the crappy secondary consequences our current policy produces (ie, permanent rather than temporary family separation, wealthier and more powerful human smugglers, horrific ICE detention centers, deaths in the desert, inflamed nativist right wing vigilantes, etc).

      • Peter Schaeffer

        We can have zero illegal immigration with only a trivial effort to enforce the law. Eisenhower removed 1-2 million illegals in 90 days with just 1000 agents. Wasn’t hard. Just start enforcing the law and the illegals go home.

        Right now the U.S. is a 3 million square mile sanctuary zone. Change that with even minimal internal enforcement and the illegals will leave and not come back.

    • Peter Schaeffer


      Right now we have what I call “enforcement theatre”. The border patrol catches illegals and hands them back to Mexico. They try again. The same illegals are frequently caught several times in one day. The bottom line amounts to

      “it ain’t over until the illegal wins”

      Internal enforcement (deportation) works the same way (to a lesser extent). The U.S. frequently deports illegals who have already been deported. Why? Because their no downside for the illegals. They get a free trip home.

      I should say that being deported from inside the U.S. (versus caught at the border) is a greater deterent.

  • jafd

    If the USA _really_ wanted to reduce illegal immigration, we’d simply amend 26 U.S.C.§ 162 (the section of the Income Tax Code which defines deductable “trade and business expenses” (readable online at http://www.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00000162—-000-.html)), adding a paragraph to “(c) Illegal bribes, kickbacks, and other payments”, so that after “(1) Illegal payments to government officials or employees” would be a subparagraph (4), reading something like: “No payments or transfers of value, for labor or services rendered, to any person not legally entitled to work in the United States, shall be considered a tax-deductible business expense,”

    So, if Mr OnePercent is paying the gardener and nanny out of pocket, it won’t affect him. But employers will have a choice between hiring tractable ‘legal nonpersons’ expensively or US citizens for less.

    • Malaclypse
      • Peter Schaeffer

        The IRS has a better track record of enforcing the tax code than ICE has of enforcing out immigration laws.

        Individuals and companies are likely to be more fearful of tax fraud than immigration violations.

        • jafd

          Hello, Mr. Schaeffer !

          You’ve said what I didn’t. Thanks!

        • Malaclypse

          The IRS has a better track record of enforcing the tax code than ICE has of enforcing out immigration laws.

          You have clearly never seen what small business owners already claim as legitimate expenses, with no fear of being caught.

          • Peter Schaeffer


            Check out how many people went to jail last year for tax fraud versus employing illegals. The latter number is probably zero.

            Nobody fears ICE will send them to jail. Cheat on your payroll taxes and you will go to jail.

            • Malaclypse

              Check out how many people went to jail last year for tax fraud versus employing illegals. The latter number is probably zero.

              119, actually.

              • Peter Schaeffer


                That would be 119 people convicted. No mention of the sentences except in one case.

                Perhaps you missed the part about

                “Mr. Burke said prosecutors saw that they could accuse the Evensons under the severe penalties of the tax code — “the hammer,” as he put it. Charged with evading more than $400,000 in taxes on wages for some 360 unauthorized immigrant workers, the Evensons together face more than $10 million in fines if convicted on all counts. They have pleaded not guilty, and their lawyers declined to comment, saying they awaited evidence from prosecutors. “

  • Peter Schaeffer

    Can we keep illegals out? Of course, we can. Build a fence. A real fence. Lots of barbed wire. Two layers preferably.

    Fences have an excellent track record around the world. Don’t believe me? Check out one of the fences Europe is building (Melilla border fence) to keep out illegals. Saudi Arabia is building several fences to protect it from jihadis and illegals. The Kurds are building a barrier to protect themselves from the endemic violence of the rest of Iraq. Thailand is building a “security fence” along its border with Malaysia. A few other countries building fences include India, China, Pakistan, Uzbekistan, the UAE, and Kuwait. See the The good fences epidemic for an article on the subject.

    The Israeli fence (it is not a wall) has been a spectular success so far reducing suicide bombings inside Israel by at least 90%. If the Israeli fence can stop suicide terrorists, I am pretty sure than an American fence can stop illegal aliens.

    Check out “What America can learn from Israel’s West Bank security barrier” (http://www.slate.com/id/2143104/) by Shmuel Rosner. A useful quote

    “The country that builds the fence buys a sense of security, but the people prevented from getting to work, or shopping, or marrying someone on the other side will not be thankful for it. And the reason is pretty obvious: Fences work.”

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