Last week, I asked Prof. Landsburg (who was so kind today as to repost my Al Gore post) to respond to some of the less silly arguments against large scale immigration, rather than just making fun of some of the sillier ones, and the good professor graciously responded in comments on his blog and while I have one or two thoughts in reply, none are urgent, earth-shattering, or sufficiently well steeped in reflection that the world could not wait for them another day.
Instead let me take the opportunity to seriously respond to one of the weaker yet popular arguments against the current wave of low-skill large-scale immigration bandied about today, to wit: That most of it is contrary to the laws of the United States. It usually takes the form of rhetorical questions like "What part of 'illegal' don't you understand?" and is frequently considered by its advocates an irrefutable argument ender.
Yet it is hardly that as a little further thought demonstrates. But first to give its advocates their due:
First, in so far as they merely stress the illegality in protest against the common media euphemism "undocumented worker"—as if any non-trivial number of these had just misplaced their legal work authorizations, rather than working and living in the United States in violation of the law, i.e., illegally—or the equally odious media practice of equating opponents of illegal immigration as "opponents of immigration"—while slyly hinting that this renders them hypocrites as immigrants or descendants of immigrants themselves—their ire at much reporting is not misdirected. But that of course is not the fault of the actual illegal immigrants and hardly settles what would be a just way of dealing with them.
Second, a strong social norm in favor of legal conduct is probably a necessary (but not sufficient) condition for the continued existence of liberal, open society—that is one, in which most people most of the time are free to do as they please for their own reasons and without governmental surveillance. As a lawyer and a blogger who just denounced two scholars for completely ignoring legality in their arguments about the propriety of strategic mortgage default, I would be a hypocrite to argue otherwise.
That said, the fact that many immigrants are illegal does not settle the questions (1) of whether they ought to be and, even if they ought to be, (2) how severe a punishment can or should be imposed on them consistent with either economic efficiency or our moral sentiments.
First, whether a particular immigrant is illegal depends on the whim of Congress; whether he or she ought to be depends on moral and economic reasoning. The faint hope that there is some sort of relationship between the two survives, but obviously it is not perfect. Some laws—imagine a law requiring people born on odd days of the month to murder and take the property of their neighbors born on even days—are so wrong that it would be profoundly wrong to obey and absolutely require breaking. Some laws—think of import restrictions and tariffs to protect special interests like steel manufacturers—are wrong to a lesser degree, so that one may obey out of prudence or, if you will, cowardice and yet would cheer their violators—as this author would any brave steel smuggler! To derive, with mathematical certainty, that certain immigrants should be illegal because they are is to commit a specialized form of the naturalistic fallacy: deriving an ought from an is.
As far as laws are concerned, the reverse is the sound policy: We ought to make illegal what is already morally wrong or economically inefficient for other reasons, rather than argue that something is morally wrong on the sole basis that it is illegal. In the case of most illegal immigrants—who commit no other crimes, work hard at less than desirable jobs, use their income to take care of their families, and aside from distributional issues on net undoubtedly improve the welfare of other residents of this country—it is very hard to argue that what they are doing is inherently morally wrong or an economic harm. One suspects that is why their opponents fall back on the illegality argument so often.1
Second, while as conceded above, a social norm for obeying all but the most odious laws (like those requiring murder or economic tariffs) is a good thing, it hardly follows that we must punish illegal immigrants as severely for their violation as most proponents of enforcement demand. Let's be clear: the punishment for an illegal immigrant who is brought to the attention of the right federal (and many state) authorities, even if it is a first offense and there are no other allegations of criminality, is draconian: deportation. That means loss of job and home, drastic reduction in standard of living, permanent separation from friends, and in many cases family. That is a pretty harsh penalty.
Now many would respond, "but they broke the law, so they earned their punishment!" But again this is hardly a sufficient argument. Even setting aside the fact that the U.S. is at risk of drowning in useless laws whose violation is nearly as unavoidable as breathing, even generally good and wise laws are frequently broken without justifying such harsh penalties. Or at least, I've never known any adult who claimed to have never violated the speed limit by so much as one mile per hour or have jay walked. Even if one believes that these are violations of appropriate law, it seems indisputable that their universal and strict enforcement would bring the nation to a standstill. Punishing violators as harshly as violators of the immigration laws would depopulate it.
So, even if—contrary to what my opinion as argued above—laws prohibiting many immigrants from entering and working in the U.S. were proper, the punishment would hardly fit the crime. In particular, for first time offenders, the laws are massively more lenient towards car thieves, muggers, burglars, and those guilty of simple assault, even though the offenders are indisputably far more morally culpable (and their conduct economically harmful).2
So if deportation, either juridically or self- (in order to avoid the juridical alternative), is excessively harsh punishment for illegal immigrants, what is the alternative? The only one possible seems to be legalization, perhaps combined with some level of lesser punishment such as a fine or permanently ineligibility for citizenship. That may not exactly fit the legal definition of amnesty (that is, the complete forgiveness of a legal offense), but will likely be close enough to deserve that title.
1A similar argument is often made against those who favor abolition of the current law against recreational drugs. "What part of 'illegal' don't you understand?" "If you think that will reduce crime, why not just legalize murder, that would reduce crime too, huh?" The flaw is the same: We ought to make illegal what is already wrong for extra-legal reasons. The arguments for the immorality and economic inefficiency of murder are already pretty strong without any reference to its illegality. Murder should be illegal because its wrong; it is not seriously wrong just because it is illegal. The drug prohibition and the severe restrictions on immigration in current law cannot make the same claim.
2In fact, this author might be convinced to support deportation for many of those offenders!
