Re-thinking immigration, this time from a conservative scholar

Current immigration law and its complications have a long history. We now get the benefit of learning about it from an expert in the field.

My last post, Re-thinking immigration, has drawn a lot of commentary, most of it critical. Unlike our self-righteous and cocksure pals on the Left, I welcome and am grateful for differing views, particularly of the sort held by Ringside readers — that is, people who believe the United States is a force for good and want to make it stronger. Honest disagreement is a central democratic virtue. When I met Paul, for instance, I was a Goldwaterite and he was a Marxist. Our “disagreements” could be heard pretty far down the hall in the law dorm where we spent our first year at Stanford. Since then, things have………changed.

Just now, I received one comment from a scholar in immigration law. I cannot disclose his/her identity because of the sensitivity of the position he/she now holds. I can say that the person is a former Supreme Court clerk and former law professor. The comment, which is actually an essay, is long by Ringside standards but has the virtue of this defect, namely, that it’s an education in a field that sees a lot of heat but not uniformly that much light. Its author took a great deal of time and effort to put it together, and I want to pass it on below to our readership.

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Bill’s implicit acknowledgment in his most recent post that many illegal immigrants are not here because they are willfully indifferent to immigration rules is critical to any serious conversation on this topic. His recognition that immigrants like his father’s parents have been essential to the country’s dynamism is also key to that conversation.

Understanding why the idea that we should expend numerous resources trying to do something that can’t and shouldn’t be done (deport all illegal aliens) first requires understanding how very different the immigration laws under which his paternal grandparents came into the country were from the immigration laws we have now. Unlike the immigration laws in place through the late 19th century, today’s immigration laws make it extremely difficult for entrepreneurial people who are prepared to work hard to immigrate here legally. As a result, many unskilled but highly productive people are here illegally, either because they entered illegally or overstayed their visas. Otherwise, though, they likely resemble his father’s family, including in their eagerness to assimilate. We do not have the resources to remove them all, and doing so would harm Americans who rely on them for, to give the most obvious examples, construction projects to succeed, hotels and restaurants to be staffed, their lawns to be mowed, and their children to be cared for. And it goes well beyond that.

Most people don’t realize how restrictive the current American immigration system is. It’s completely different from the laws in place when Bill’s father’s family came to the United States in the late 19th century.

The general rule before 1882 was that anyone other than “undesirables” (largely forced laborers and prostitutes) could come here and become a legal resident. After 1882, that remained the general rule, except for Chinese laborers, convicts, lunatics, people with contagious diseases, and people unable to take care of themselves without becoming a public charge. Under this system, between 1861 and 1890, 10.4 million immigrants, mainly of Southern and Eastern European descent, arrived in the United States. This largely open system is likely the set of rules under which Bill’s father’s family came to the United States.[i]

This began to change during the early 20th century. At that time, Progressives (primarily) started to push for more restrictive immigration rules, claiming that immigrants disproportionately committed crimes, abused welfare, stifled innovation, and depressed native-born Americans’ wages. Some tied these tendencies to fashionable eugenics notions that people of certain ethnicities (e.g., Asians, Africans and, tellingly, Jews) would be inherently incapable of assimilating.

In response, starting in 1921, the United States began to restrict immigration more significantly. Until that time, any immigrant not specifically excluded could migrate to the U.S. The Emergency Quota Act of 1921, followed by the 1924 National Origins Act, changed all this. By 1924, immigrants from the Eastern Hemisphere (essentially everywhere outside of the Americas) needed immigrant visas, which were capped at about 164,000 a year, with country-of-origin caps further severely restricting immigration especially from countries outside Northern and Western Europe.

The quotas were not as restrictive as this sounds. Wives and children of current citizens could come in without regard to the quotas. Additionally, quota immigrants could bring their spouses and unmarried children without regard to the cap.

Nonetheless, the average number of annual legal immigrants before the 1924 Act dropped from about 555,000, or about .63% of the population, to about 304,000. During the 1930’s, it dropped dramatically further, to around 69,000, or about .05%.

This was likely due to several factors. One was that the 1924 Act came into full force with a full-fledged enforcement apparatus, including the creation of the Border Patrol. A second was likely that migration was made more difficult by the Depression, and the United States’ comparative economic advantage was diminished.

Additionally, the apparatus for enforcing the 1924 Act was also deployed to discourage immigration from Mexico, even though Mexicans were not restricted from immigrating to the U.S. by the 1924 law. The newly constituted Border Patrol stopped large numbers at the border from coming in, using literacy and other legal barriers. A substantial effort was also mounted to “repatriate” large numbers of Mexicans and American-born citizens of Mexican descent.

During World War II, the 1924 system began to come under strain. Since its founding, the United States had defined itself as a place of refuge from those fleeing religious and political persecution, including Jews fleeing pogroms in Eastern Europe/Russia. Emma Lazarus’s “The New Colossus,” written in honor of the Statue of Liberty, and with its closing lines, put in the Statue’s mouth and engraved on her pedestal:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless tempest-tost to me,
I lift my lamp beside the golden door!”

Yet the 1924 law’s quotas had no exception for refugees. This ultimately resulted in passage of laws in 1948 and 1953 that allowed admission of more than half a million refugees. Additionally, the Immigration and Nationality Act of 1952 increased immigrant quotas from Northern and Western Europe, and created a theoretical route for employment immigration, as well as temporary work visas for skilled immigrants and student visas, as well as removing the ban on Asian immigrants.

The influence of the Civil Rights movement prompted further reform – but less than meets the eye. The 1965 Immigration and Nationality Act changed the 1924 law’s approach, by reducing but not eliminating the focus on nationality. Instead of capping visas only for the Eastern Hemisphere, it capped all visas at 290,000 annually – 170,000 for the Eastern Hemisphere and 120,000 for the Western Hemisphere, plus a 20,000 cap per country for all countries, initially in the Eastern Hemisphere only, but ultimately extended to the Western Hemisphere as well. It continued to exempt spouses, minor children and parents of citizens from the caps. It also reserved 74% of the capped visas for family immigration, with 20% theoretically available for workers and 6% for refugees. It did not create an effective program for unskilled workers to come in either temporarily or long term.

This is largely the system we have today. The result is a system that works reasonably well for immediate family members of citizens, but does not work for anyone else or for the benefit of the United States. In particular, anyone who is not an immediate family member of a citizen and wants to live in the U.S. and work long term has very few avenues available. The wait for an immigrant employment visa is generally multi-year, in between the numerical cap and the per-country cap. Employers are not interested in waiting several years to hire someone. There are a small number of visas for entrepreneurs who want to start companies, but they require a far more substantial initial investment than is necessary to start a useful company that creates wealth and jobs. A relatively small number of highly skilled workers can come in through the temporary H-1B program and work while waiting for a long term employment visa to become available , but (as commenter Betsy recognizes) there is no similar program for less skilled workers like Bill’s father’s family. Accordingly, illegal immigrants take up much of the slack, including in high growth and critical occupations like construction and agriculture.

Commenter Freedom Lover is correct that relying on a combination of illegal immigration and enforcement discretion is an unsatisfactory solution. It would be far better for there to be reform of the legal immigration system to make it feasible for these needed workers to come here legally. But the (legitimate) rule of law concerns Bill noted in his first post should not lead people to turn a blind eye to the unworkability of the “deport them all” approach or to imagine that there is an easy solution under the current immigration laws.

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[i] Becoming a naturalized citizen was harder, and presumptively restricted to “white persons” until 1952, although this changed for people of African descent in 1870, followed by Chinese