Immigration law should reflect our dynamic labor market

by Daniel Griswold

Among its many virtues, America is a nation where laws are generally reasonable, respected and impartially enforced. A glaring exception is immigration.

Today an estimated 12 million people live in the U.S. without authorization, 1.6 million in Texas alone, and that number grows every year. Many Americans understandably want the rule of law restored to a system where law-breaking has become the norm.

The fundamental choice before us is whether we redouble our efforts to enforce existing immigration law, whatever the cost, or whether we change the law to match the reality of a dynamic society and labor market.

Low-skilled immigrants cross the Mexican border illegally or overstay their visas for a simple reason: There are jobs waiting here for them to fill, especially in Texas and other, faster growing states. Each year our economy creates hundreds of thousands of net new jobs – in such sectors as retail, cleaning, food preparation, construction and tourism – that require only short-term, on-the-job training.

At the same time, the supply of Americans who have traditionally filled many of those jobs – those without a high school diploma – continues to shrink. Their numbers have declined by 4.6 million in the past decade, as the typical American worker becomes older and better educated.

Yet our system offers no legal channel for anywhere near a sufficient number of peaceful, hardworking immigrants to legally enter the United States even temporarily to fill this growing gap. The predictable result is illegal immigration

In response, we can spend billions more to beef up border patrols. We can erect hundreds of miles of ugly fence slicing through private property along the Rio Grande. We can raid more discount stores and chicken-processing plants from coast to coast. We can require all Americans to carry a national ID card and seek approval from a government computer before starting a new job.

Or we can change our immigration law to more closely conform to how millions of normal people actually live.

Crossing an international border to support your family and pursue dreams of a better life is not an inherently criminal act like rape or robbery. If it were, then most of us descend from criminals. As the people of Texas know well, the large majority of illegal immigrants are not bad people. They are people who value family, faith and hard work trying to live within a bad system.

When large numbers of otherwise decent people routinely violate a law, the law itself is probably the problem. To argue that illegal immigration is bad merely because it is illegal avoids the threshold question of whether we should prohibit this kind of immigration in the first place.

We've faced this choice on immigration before. In the early 1950s, federal agents were making a million arrests a year along the Mexican border. In response, Congress ramped up enforcement, but it also dramatically increased the number of visas available through the Bracero guest worker program. As a result, apprehensions at the border dropped 95 percent. By changing the law, we transformed an illegal inflow of workers into a legal flow.

For those workers already in the United States illegally, we can avoid "amnesty" and still offer a pathway out of the underground economy. Newly legalized workers can be assessed fines and back taxes and serve probation befitting the misdemeanor they've committed. They can be required to take their place at the back of the line should they eventually apply for permanent residency.

The fatal flaw of the 1986 Immigration Reform and Control Act was not that it offered legal status to workers already here but that it made no provision for future workers to enter legally.

Immigration is not the only area of American life where a misguided law has collided with reality. In the 1920s and '30s, Prohibition turned millions of otherwise law-abiding Americans into lawbreakers and spawned an underworld of moon-shining, boot-legging and related criminal activity. (Sound familiar?) We eventually made the right choice to tax and regulate alcohol rather than prohibit it.

In the 19th century, America's frontier was settled largely by illegal squatters. In his influential book on property rights, The Mystery of Capital, economist Hernando de Soto describes how these so-called extralegals began to farm, mine and otherwise improve land to which they did not have strict legal title. After failed attempts by the authorities to destroy their cabins and evict them, federal and state officials finally recognized reality, changed the laws, declared amnesty and issued legal documents conferring title to the land the settlers had improved.

As Mr. de Soto wisely concluded: "The law must be compatible with how people actually arrange their lives." That must be a guiding principle when Congress returns to the important task of fixing our immigration laws.