http://www.heritage.org/Research/GovernmentReform/bg1807.cfm
The Principles of Immigration
by Edwin Meese III and Matthew Spalding
Backgrounder #1807
October 19, 2004 |
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More than any other nation in history, our country and its system of equal
justice and economic free-dom beckons not only the downtrodden and the
persecuted-indeed, all those "yearning to breathe free"-but also those who
seek opportunity and a better future for themselves and their posterity.
The very nature of the principles upon which the United States is
established encourages immigration and promotes the transformation of those
immi-grants into Americans-welcoming newcomers while insisting that they
learn and embrace America's civic culture and political institutions,
thereby form-ing one nation from many peoples. The result has been a
strengthening of our social capital, a deepen-ing of our national
patriotism, and a continuing expansion of our general economy. America has
been good for immigrants, and immigrants have been good for America.
Over the past several decades, though, immigra-tion policy has become
increasingly confused and unfocused. Today, immigration policy is mostly
debated at the extremes, between those who want no immigrants and those who
want no borders, imply-ing that immigration is an all-or-nothing
proposition.
A better approach is for policymakers to step back from the politics and
policies of the moment and take the time to deliberate and develop a clear,
com-prehensive, meaningful, and long-term policy con-cerning immigration,
naturalization, and citizenship that is consistent with the core principles,
best tradi-tions, and highest ideals of the United States.
Admittedly, this is no easy task. The purpose of this paper is to provide a
few guiding principles, suggest some policy considerations, and propose
several first steps for developing such a policy.
Guiding Principles
As policymakers begin a new round of discus-sions about immigration policy
proposals, four general principles ought to guide this discussion and be
used to evaluate and judge any specific proposals.
The Consent of the Governed. The United States is a sovereign nation. The
very idea of sov-ereignty implies that each nation has the
responsi-bility-and obligation-to determine its own conditions for
immigration, naturalization, and citizenship.
Individuals who are not citizens do not have a right to American citizenship
without the consent of the American people, as expressed through the laws of
the United States. Through those laws, the people of the United States
invite individuals from other countries, under certain conditions, to join
them as residents and as fellow citizens. Congress has the constitutional
responsibility "[t]o establish an uniform Rule of Naturaliza-tion"[1] that
sets the conditions of immigration and citizenship and to ensure the
fairness and integ-rity of the legal process by which immigrants enter the
country legally and, in many cases, become American citizens.
Patriotic Assimilation. The United States has always welcomed immigrants who
come to this country honestly, with their work ethic and appre-ciation of
freedom, seeking the promises and opportunities of the American Dream. This
is because the founding principles of this nation imply that an individual
of any ethnic heritage or racial background could become an American.
However, those same principles also call for- and a successful immigration
policy is only possi-ble by means of-a deliberate and self-confident policy
to assimilate immigrants and educate them about this country's political
principles, history, institutions, and civic culture. This may be a nation
of immigrants, but it is more accurate to say that this is a nation where
immigrants are Americanized, sharing the benefits, responsibili-ties, and
attachments of American citizenship. While the larger formative influence
occurs through the social interactions and private institu-tions of civil
society and through public and pri-vate education, the federal government
has a significant but limited role in ensuring the success of this crucial
process.
National Security. Every nation has the right, recognized by both
international and domestic law, to secure its borders and ports of entry and
thereby control the goods and persons coming into its territory. Americans
have always been and remain a generous people, but that does not miti-gate
the duty imposed on the United States gov-ernment to know who is entering,
to set the terms and conditions of entry and exit, and to control that entry
and exit through fair and just means.
This task is all the more important after the events of September 11, 2001.
A disorganized and chaotic immigration system encourages the cir-cumvention
of immigration laws and is a clear invitation to those who wish to take
advantage of our openness to harm this nation. Secure borders, especially in
a time of terrorist threat, are crucial to American national security.
The Rule of Law. Immigration is no exception to the principle that the rule
of law requires the fair, firm, and equitable enforcement of the law.
Failure to enforce immigration laws is unfair to those who obey the law and
go through the regula-tory and administrative requirements to enter the
country legally.
Those who enter and remain in the country ille-gally are violating the law,
and condoning or encouraging such violations causes a general disre-spect
for the law and encourages further illegal conduct. Forgiving the
intentional violation of the law in one context because it serves policy
objec-tives in another undermines the rule of law. Amnesty is appropriate
only when the law uninten-tionally causes great injustice or when particular
cases serve the larger purposes of the law. Those who break immigration laws
should not be rewarded with legal status or other benefits, and they should
be penalized in any road to citizenship.
Policy Considerations
The application of principles in practice is not easy. Principles must be
applied in ways that take account of previous experiences, particular
cir-cumstances, and practical outcomes. Policy deci-sions should advance
principles as much as possible under prevailing conditions. In most cases,
policymakers are starting not with a clean slate but with the results of
previous policies. They cannot ignore the practical and political realities
in which reform must occur.
At this time, Congress is considering several proposals to reform
immigration law. Among these proposals is the creation of a temporary worker
program that would be open to new for-eign workers and to illegal immigrants
currently in the United States. Before implementing this or any other such
proposal, policymakers must address several practical considerations-in
addition to referring back to guiding principles- that raise serious
challenges for immigration reform. We are especially concerned about six
policy considerations.
National and Homeland Security. Now more than ever, Congress must take steps
to ensure that immigration policy-or the lack of immigration policy
enforcement-does not undermine national security. Among other things, the
new Department of Homeland Security was established to consoli-date the
previously fragmented functions of immi-gration and border security and to
document non-citizens entering, exiting, and residing in the United States.
A critical element of any reform proposal must be to secure our national
borders-addressing the issue from the point of origin, in transit, at the
border, and within the United States-and to support ongoing efforts to
strengthen the activi-ties, assets, and programs necessary to enhance
homeland security. America's immigration system must be a national strength
and not a strategic vulnerability.
Illegal Immigration. The issue of legal immi-gration is greatly exacerbated
by the reality of ille-gal immigration. The major source of illegal
immigration is from illegal border crossings, and most of these illegal
immigrants are from Mexico. The other source of illegal immigration is from
those individuals who stay in the United States after their non-immigrant
visas expire. These are serious problems that policymakers and law
enforcement must address.
While recognizing the difficulty and challenge of finding and removing every
illegal immigrant in the United States, Congress and the President must take
credible steps to reduce illegal immigra-tion in both annual and absolute
terms. New reforms should not encourage or exacerbate the problem of illegal
immigration. In considering new programs, policymakers must recognize that
any program that is vague or unenforceable or that allows temporary visitors
or workers to disappear when their legal status expires could mean a larger
illegal immigrant community-and a larger public policy problem.
The Welfare State. The United States has a generous welfare, education, and
health system, with generous eligibility. Low-skill and elderly immigrants
may impose costs on government that exceed taxes paid. The costs of
providing welfare assistance to immigrants and education for the children of
immigrants are potential concerns.
Unlike previous generations, the perverse incentives of the modern social
welfare system- through policies that discourage self-reliance, family
cohesiveness, and financial indepen-dence-invite poor and low-skill
immigrants to enter the ranks of the underclass rather than encourage them
to seek the opportunities hereto-fore associated with achieving the American
Dream. Although these troubling incentives in the welfare system are likely
to remain for the foresee-able future, policymakers must ensure that the
interaction of welfare and immigration policy does not expand the
welfare-dependent popula-tion, thereby hindering rather than helping
immi-grants and potentially imposing large costs on American society.
Financial Responsibility. Part of the problem of immigration-and part of the
solution to that problem-has to do with economic incentives. Getting those
incentives right is good for immi-grants, good for employers that wish to
hire immi-grants legally, and good for the larger community. Currently,
there is an unbalanced incentive in which an employer of a temporary worker
gains the economic benefits but does not bear the poten-tial costs of that
person's failure to return to his or her home country (enforcement costs,
social ser-vices, etc.).
The full potential cost of a legal worker's becom-ing an illegal immigrant
should be carried by the employer. For instance, sponsors of immigrants
could be required to demonstrate sufficient finan-cial ability to support
the sponsored immigrants, both to prevent them from becoming dependent on
welfare and to create an incentive for employers not to hire immigrants who
might violate the terms of their immigration status. An experience-rated
bond or insurance system for employers of temporary workers would encourage
them to uphold the law and to weigh the full costs against the benefits.
Congress should consider whether a market solution that enforces liability
might ease the problem of illegal immigration more effectively than more
regulation of business can.
Enforcement. The federal government has a poor track record in consistently
enforcing national immigration laws. For its part, Congress has been
unwilling to devote the resources neces-sary to carry out its own policies.
At the same time, recent Administrations seem to be unsure about when to
enforce which laws. There are employers and others outside the immigrant
community that simply do not want enforce-ment. The result is a system that
is porous, arbi-trary, and unpredictable. This weakens the current
immigration regime and encourages its circumvention.
What immigration policy needs-as any new program requires-is a clear and
determined strat-egy to enforce all the rules. Immigration reform in general
and any new program in particular must go hand-in-hand with a much stronger
approach to violations of our immigration laws. Before pro-ceeding,
policymakers must have the political will to insist on the rule of law.
Burden on State and Local Governments. Although immigration policy is
primarily a federal responsibility, it is the state and local governments
that mostly deal with the practical implications of that policy. On the one
hand, as the federal gov-ernment neglects its obligation to secure America's
borders, the states pick up the tab for illegal immi-grants who receive
various local services and impose local costs. This is a financial and
practical burden-and an unfunded mandate-placed on states by a federal
government that is unwilling to enforce its own laws.
On the other hand, state and local law enforce-ment needs to play a larger
role in investigating, detaining, and arresting illegal immigrants on civil
and criminal grounds. The primacy of the law ulti-mately depends on officers
of the law-at every level of government-being bound to its support and
implementation. In considering various pro-posals to reform immigration
policy, Congress must address these and other issues of cooperative
federalism.
Recommendations
It will take time and effort to design a compre-hensive program of
immigration reform and build the political consensus to support and carry
out that reform. The principles and policy consider-ations outlined
here-especially those concerning national and homeland security-must govern
this reform.
In the meantime, there are several initial steps that can and should be
taken now to stabilize immigration policy and begin to reorient it toward
its guiding principles. Specifically, the Administra-tion and Congress
should:
Better regulate entry and exit. The vast majority of individuals entering
the United States legally are travelers holding nonimmi-grant visas of
various lengths. In order to keep visas out of the hands of terrorists, the
Bush Administration and Congress have made their issuance and monitoring a
leading concern.
There has been much progress in this effort. Nevertheless, many of the
deadlines of the Enhanced Border Security and Visa Entry Reform Act-such as
the implementation of an integrated entry-exit system-have been missed.
These measures and the enforcement of existing visa laws should be a
priority for Congress and the Administration. Because of the security
aspects of the visa process, Con-gress should transfer the Office of Visa
Services in the State Department to the Department of Homeland Security.[2]
Strengthen citizenship. Several things could be done to revive and
strengthen the process by which American principles are inculcated in those
who seek to become U.S. citizens. The Immigration and Nationality Act (INA)
requires that candidates for citizenship dem-onstrate both an understanding
of the English language and "a knowledge and understanding of the
fundamentals of the history, and the principles and form of government, of
the United States."
When Congress formed U.S. Citizenship and Immigration Services within the
Department of Homeland Security, it created a new Office of Citizenship to
promote instruction and develop educational materials on citizenship. These
activities ought to be encouraged, rein-forced, and expanded. The test taken
by candi-dates for citizenship should be strengthened to focus on core
history and civic principles rather than trivia or process. The requirement
that applicants understand the English lan-guage must be enforced, and
English language instruction should be strongly promoted. The oath of
citizenship-the contents of which are described, not specified, in the
INA-should be codified in law.[3]
Step up criminal enforcement. While there are legitimate enforcement and
other concerns about a proactive policy to remove all illegal immigrants, it
makes sense at least to take firm action against those who engage in serious
crime or blatantly ignore deportation orders.
Interior immigration enforcement is the responsibility of the U.S. Bureau of
Immigra-tion and Customs Enforcement (ICE). Cur-rently, that program does
not have sufficient manpower and resources to carry out an exten-sive
enforcement program. Until this situation changes, ICE should direct its
efforts to be more efficient and effective. In addition to var-ious targeted
enforcement efforts, it should focus intensely on finding and deporting
crim-inal illegal immigrants and those who have fled after having been
ordered to be deported.
Improve local and state enforcement. In the normal course of criminal
investigations, state and local law enforcement-which is the prac-tical and
preferred level for most law enforce-ment policies-should neither ignore
immigration law nor hesitate to cooperate with federal immigration officials
as appropriate.
In the case of counterterrorism, more con-certed effort is needed. For now,
adequate authority for state and local enforcement exists in Section 287(g)
of the Immigration and Nationality Act. A pilot program with the State of
Florida could serve as a national model and ought to be encouraged.[4]
Prevent document and identity fraud. Docu-ment fraud exists throughout the
immigration system and, if left uncorrected, will continue to be an exposed
weakness in our homeland security system.
Congress should follow the recommendation of the 9/11 Commission and set
nationwide standards for the issuance of key documents, such as driver's
licenses, that are used to establish identity.[5] These standards should
require proof of citizenship or lawful pres-ence in the United States as a
prerequisite for such documents. Also, while recognizing legitimate concerns
about creating a national identification card, Congress must ensure that
Social Security cards are less susceptible to fraud.
Encourage economic freedom abroad. Most individuals and families that come
to the United States legally (and illegally) are seek-ing economic
opportunity. One way to reduce illegal immigration in the long run is to
pro-mote economic growth in the nations that these individuals forsake. As
long as Mexico's economy does not provide sufficient opportu-nities to
satisfy the country's growing popula-tion, many of its citizens will have an
incentive to cross our common border ille-gally in search of work.
The United States should encourage Mexico to reform its economy by ending
business monopolies and corrupt practices, allowing foreign investment,
reducing regulation, and improving property rights. These are the nec-essary
steps for Mexico to build a strong and stable entrepreneurial, free-market
economic system.[6] To this end, the United States recently initiated the
Millennium Challenge Account, a new form of foreign assistance that
encourages economic growth by focusing on positive results rather than the
amount of money given to individual countries.[7]
Investigate existing programs. The United States already has several
programs for tem-porary non-immigrant workers. These pro-grams allow
individuals to stay in the country for various lengths of time with an
employment-based visa for various occupa-tional purposes.
Although these programs are rather bureau-cratic and cumbersome, one option
for Con-gress to consider for addressing the demand for temporary workers is
streamlining and adapting existing procedures for granting non-immigrant
work visas. There already exists an unrestricted visa classification for
temporary or seasonal agricultural workers (H-2A), yet few agricultural
employers or farm workers use this visa mechanism. The experi-ence and
feasibility of this option ought to be investigated before considering an
entirely new program.
Rebuild the Coast Guard. Although long overlooked, the U.S. Coast Guard's
many mis-sions touch on virtually every aspect of mari-time and border
security. However, the Coast Guard's fleet is old, expensive to operate and
maintain, and poorly suited for some home-land security missions.
As a result, underfunding of Coast Guard modernization is a significant
problem for the national capacity to enforce immigration laws at sea, in
coastal areas, and at many ports of entry. Congress should accelerate
spending on Coast Guard modernization and make addi-tional investments in
assets that support this essential aspect of border security.[8]
Conclusion
Immigration will always be an important issue in the United States, not
because the issue is a perennial problem, but because it is inextricably
connected to the fundamental principles upon which this nation is founded.
Because of that con-nection, it is imperative that policymakers take the
time to think through and implement immigration policies that are consistent
with these principles, the necessities of national security, and the great
traditions and compassionate practices of Amer-ica's ongoing experiment in
ordered liberty.
Edwin Meese III is a Distinguished Fellow at The Heritage Foundation, where
he holds the Ronald Reagan Chair in Public Policy. Matthew Spalding is
Director of the B. Kenneth Simon Center for American Studies at The Heritage
Foundation.
[1]U.S. Constitution, Article 1, Section 8, Clause 4.
[2]James Jay Carafano and Ha Nguyen, "Better Intelligence Sharing for Visa
Issuance and Monitoring: An Imperative for Home-land Security," Heritage
Foundation Backgrounder No. 1699, October 27, 2003, at
www.heritage.org/Research/HomelandDefense/ BG1699.cfm.
[3]Matthew Spalding, "Strengthen Citizenship in INS Reform," Heritage
Foundation Executive Memorandum No. 809, April 8, 2002, at
www.heritage.org/Research/GovernmentReform/EM809.cfm.
[4]James Jay Carafano, Ph.D., "No Need for the CLEAR Act: Building Capacity
for Immigration Counterterrorism Investiga-tions," Heritage Foundation
Executive MemorandumNo. 925, April 21, 2004,
atwww.heritage.org/Research/HomelandDefense/ em925.cfm.
[5]National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report: Final Report of the National Commission on Terrorist
Attacks Upon the United States (Washington, D.C.: U.S. Government Printing
Office, 2004), at www.9-11commission.gov/report/911Report.pdf (October 8,
2004).
[6]Stephen Johnson and Sara J. Fitzgerald, "The United States and Mexico:
Partners in Reform," Heritage Foundation Back-grounder No. 1715, December
18, 2003, at www.heritage.org/Research/LatinAmerica/BG1715.cfm.
[7]James Jay Carafano and Ha Nguyen, "Homeland Security and Emerging
Economies," Heritage Foundation Backgrounder No. 1795, September 14, 2004,
at www.heritage.org/Research/HomelandDefense/bg1795.cfm. See also Marc A.
Miles, ed., The Road to Prosperity: The 21st Century Approach to Development
(Washington, D.C.: The Heritage Foundation, 2004).
[8]See James Jay Carafano, statement before the Committee on Commerce,
Science, and Transportation, U.S. Senate, March 24, 2004, at
www.heritage.org/Research/HomelandDefense/tst032404a.cfm.
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