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NRO’s domestic-policy blog, by Reihan Salam.

Clint Bolick and Jeb Bush on Immigration Reform



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Elise Foley of the Huffington Post has a summary of some of the arguments in Immigration Wars: Forging an American Solution, a new book by Clint Bolick, a libertarian legal activist and co-founder of the Institute for Justice, and Jeb Bush, the former governor of Florida. The section that has attracted the most attention is the following:

“It is absolutely vital to the integrity of our immigration system that actions have consequences — in this case, that those who violated the law can remain but cannot obtain the cherished fruits of citizenship,” Bush and lawyer Clint Bolick argue in a new book, Immigration Wars: Forging an American Solution. “To do otherwise would signal once again that people who circumvent the system can still obtain the full benefits of American citizenship.”

Foley and others note that this appears to contradict a statement the former governor made as recently as June of last year:

“You have to deal with this issue,” Bush told CBS’ Charlie Rose. “You can’t ignore it, and so either a path to citizenship, which I would support — and that does put me probably out of the mainstream of most conservatives — or … a path … to residency of some kind.”

In my view, the proposal Bolick and Bush are advancing now makes a great deal of sense, and it bears close resemblance to a proposal Peter Skerry has advanced in National Affairs and the Weekly Standard and that I’ve advocated on a few occasions. There are several other aspects to the Bolick-Bush proposal, e.g.:

(1) Bolick and Bush offer a different approach for unauthorized immigrants who arrived in the U.S. as minors, per Foley:

They argue citizenship should be granted to people who entered the country under the age of 18, have lived in the U.S. for at least five years, committed no “significant crimes” and either graduated from high school, obtained a GED or entered military service.

One of the problems with this provision is that it will be difficult to establish exactly when unauthorized immigrants arrived in the U.S. Some arrived under expired visas, which the federal government might be able to track down, yet in many cases reliable documentation will be difficult to find. The graduation or GED or military service requirement might also prove difficult to enforce. But if we assume enforcement resources are limited, this might be a relatively good place to invest them. 

The question of what to do with the children of unauthorized immigrants serves as a reminder of why the Skerry approach is fundamentally attractive. In 2009, the Pew Hispanic Center offered a demographic portrait of the undocumented population and they estimated that as of 2008, 1.5 million unauthorized immigrants were under the age of 18 out of a total undocumented population of 11.9 million. Most of the children of unauthorized immigrants (73 percent) are U.S. citizens by virtue of having been born on U.S. soil. This is part of the impetus for the Skerry proposal — the number of U.S.-born children in so-called mixed-status families (e.g., the parents are unauthorized immigrants) increased from 2.7 million in 2004 to 4 million in 2008, and the prospect of dividing families is one reason why the “hard attrition” or “self-deportation” strategy we’ve discussed is increasingly seen as politically untenable. Note that even if the rate of increase in the number of U.S.-born children in mixed-status families between 2003 and 2008 has slowed down between 2008 and 2013, we’re talking about a very large number of children. 

(2) Apart from ineligibility for citizenship (what Skerry calls “permanent non-citizen resident status”), Bolick and Bush propose fines and/or community service as a penalty for having lived in the U.S. as an unauthorized immigrant. Enforcing this provision would likely prove challenging, particularly in jurisdictions in which the population of unauthorized immigrants is high. One can imagine a community service requirement that would help integrate unauthorized immigrants into the wider community and promote assimilation, yet such a program would be expensive, not least because identifying skilled supervisors and instructors to lead the program would be a challenge. Barring unauthorized immigrants from citizenship, in contrast, would be relatively easy to administer. 

(3) Bolick and Bush don’t actually bar unauthorized immigrants from ever obtaining U.S. citizenship, as Foley explains:

Although Bush and Bolick state there should be no special pathway, they say undocumented immigrants should be allowed to go through normal channels to naturalize by going to their native country to apply. That process currently requires three- or 10-year bars and no guarantee of return, making it untenable to many undocumented immigrants.

“A grant of citizenship is an undeserving reward for conduct that we cannot afford to encourage,” they write. “However, illegal immigrants who wish to become citizens should have the choice of returning to their native countries and applying through normal immigration processes that now would be much more open than before.”

This strikes me as entirely appropriate. Unauthorized immigrants who are eligible (i.e., who have resided in the U.S. for a sufficient period) can choose to accept permanent non-citizen resident status and continue to have access to the U.S. labor market or they can leave the country and go through the formal process of becoming authorized immigrants. Many will still have a leg up in the process over other potential immigrants, due to family ties in the U.S., English language proficiency or skills acquired while in the U.S., etc. Yet taking this path will entail taking a serious risk for the unauthorized immigrants who choose it — the opportunity cost of foregone U.S. wages and the very real possibility that they won’t be accepted. That seems like a fair trade. 

I’m very impressed by the Bolick and Bush proposal, and I hope that it gains traction. As of now, the momentum is with those who, like President Obama, favor an immediate path to citizenship for virtually all unauthorized immigrants, or those who favor enforcement mechanisms that will be exceptionally difficult to administer in practice. What remains to be seen is whether Jeb Bush is able or willing to serve as an articulate proponent of his approach to immigration reform — and whether he is able to convince both immigration advocates, who will resent what they will see as the punitive aspect of the proposal (I have literally seen some advocates refer to something like permanent non-citizen resident status — which, keep in mind, allows people who overstayed their visas or illegally crossed the border as adults to become lawful permanent residents ahead of millions of other aspiring immigrants — as a form of slavery, which is a pretty grave insult to those who have been and continue to be enslaved or indentured, or to their descendants), as well as advocates of attrition, who will see it as not punitive enough. 



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