The Gang of Eight’s Emerging Immigration Deal

Having noted some of the constructive aspects of Sen. Marco Rubio’s new immigration reform framework, I should note that the broad contours of the emerging Gang of Eight proposal are somewhat disappointing. A few red flags, drawing on the summary of the deal offered by National Journal’s Niraj Chokshi:

(1) Considerable resources are being devoted to border enforcement measures of questionable cost-effectiveness. Net migration has sharply decreased for a number of reasons, including a strengthening Mexican economy. The incremental gains that will flow from additional border-patrol agents merit scrutiny.

It is true, however, that more effective tracking of temporary visa holders is badly needed, as a large share of the unauthorized influx arrives in the U.S. on temporary visas. One barrier to more effective tracking is the potential damage to travel and tourism, a sector that has the potential to grow considerably in the coming years. For example, U.S. immigration enforcement authorities might require vistors to post some kind of “security deposit” on entering the country. (I owe this idea to Stephen Sachs, though Stephen offered it in a somewhat different context. I intend to describe his idea at greater length in the future.) This deposit would be returned in full once the visa holder exited the country. There are many different ways to structure such a program, e.g., all tourist visas could require a flat security deposit, or only tourist visas issued to residents of countries that pose a high “unauthorized immigration risk.” Determining how to structure a security deposit raises many difficult conceptual questions, and of course it is anything but “welcoming,” particularly to law-abiding tourists from countries that are deemed high unauthorized immigration risks.

Short of a security deposit, it’s not clear what exactly we can do that would be effective without being excessively punitive. Rather than require a security deposit, we could impose large fines on the family members of the visa holder who overstays her visa, but of course this would require the cooperation of authorities in the source country. Moreover, this will potentially create an “a fine is a price” dynamic, per the findings of Uri Gneezy and Aldo Rustichini:

The deterrence hypothesis predicts that the introduction of a penalty that leaves everything else unchanged will reduce the occurrence of the behavior subject to the fine. We present the result of a field study in a group of day-care centers that contradicts this prediction. Parents used to arrive late to collect their children, forcing a teacher to stay after closing time. We introduced a monetary fine for late-coming parents. As a result, the number of late-coming parents increased significantly. After the fine was removed no reduction occurred. We argue that penalties are usually introduced into an incomplete contract, social or private. They may change the information that agents have, and therefore the effect on behavior may be opposite of that expected. If this is true, the deterrence hypothesis loses its predictive strength, since the clause ‘‘everything else is left unchanged’’ might be hard to satisfy.

In short, more effective visa enforcement seems like a really hard problem. I don’t have a ton of confidence that the Gang of Eight will find a workable solution, but I’m rooting for them to try. 

(2) We have discussed the idea of probationary legal status at length, and I’m not intrinsically averse to the idea, particularly in light of the fact that the political context has changed.

One potential problem, however, is that the Gang of Eight is allowing for an inexplicable loophole. DREAM-eligible unauthorized immigrants will be placed on a fast-track to citizenship, which is entirely understandable, on political and (perhaps) normative grounds. But so will agricultural workers who “who commit to the long term stability of our nation’s agricultural industries.” This creates a powerful incentive for farmers to identify aspiring immigrants as agricultural workers committed to the stability of America’s agricultural industries, perhaps in exchange for compensation. And once these immigrants are granted citizenship, it is not clear that the immigration enforcement authorities can somehow guarantee that they remain attached to agriculture. 

There are a number of implicit assumptions at work in the immigration reform debate regarding agricultural workers: (a) that today’s labor-intensive agriculture is intrinsically labor-intensive, and that capital cannot or should not be used to substitute for labor; (b) that the mix of crops we currently produce is sacrosanct, and so if rising wages force a shift to the cultivation of other crops than are more amenable to capital- as opposed to labor-intensive cultivation, all is doomed; and (c) because there is no way that agriculture will ever become less labor-intensive and more capital-intensive, there is no need to be concerned about the prospect that large numbers of less-skilled agricultural workers will find themselves displaced by skill-biased technical change, and that the lifetime net tax rates of these workers may very well (through no fault of their own) be negative, or at least very low. (That is, the lifetime fiscal contributions made by these workers may well be outweighed by the costs of giving them the resources they need to live dignified lives, by the standards of an affluent market democracy, and to help them retrain, etc.)

All of these assumptions strike me as really off-base. Consider, for example, Marie Lawrence’s Slate article on automation in agriculture. While the Gang of Eight is talking about stepping up the use of drones for immigration enforcement, large-scale U.S. agricultural firms are deploying drones to replace an aging workforce. So what about smaller farms, on which drones and other high-tech tools won’t be of much use? Lawrence writes:

On average, farms operated by people 35 and older are nearly 40 percent larger than farms operated by people under 35. These smaller plots require fewer man-hours (indeed, young farmers spend 40 percent less on contract labor), so adding a robotic worker might not result in much payroll savings. Young farmers also fork out less for chemicals and fertilizer each year. Machines that promise more efficient application won’t save them that much money.  And though data on crop diversity by farm is hard to come by, smaller, organic operations that sell directly to customers tend to grow lots of different fruits and vegetables, each with its own production challenge. A one-bot-fits-all solution is exciting but unlikely.

These farms presumably have less appetite for large amounts of less-skilled agricultural labor, at least for now. Over time, the cost of labor-saving robotic technologies will plummet. 

The agricultural worker provisions being devised by the Gang of Eight reflect the fading realities of the present and not the technological landscape of the near-future, in which large farms will be even more automated than they are now and small farms will have a wide array of low-cost technological tools to choose from. 

(3) Though I strongly favor a sharp increase in high-skilled immigration, the Gang of Eight framework (a) is strangely narrow on this front, i.e., it talks about offering work visas to foreign students who receive STEM degrees from U.S. colleges and universities, but it doesn’t talk about a broader shift to a more flexible points system like those used in Canada and Australia; and (b) by granting work visas to graduates of U.S. colleges and universities, you raise the risk of corruption. Will we treat all STEM degrees from all accredited institutions equally? Will granting accredited institutions the privilege of allowing some non-trivial number of foreigners to become lawful permanent residents make it even harder for new entrants to become accredited, thus entrenching higher education incumbents by further reducing price competition from new entrants? After all, it is legitimate to wonder if fly-by-night institutions will pop up just to grant sham STEM degrees. We can, of course, regulate this process, but this will be a costly trial-and-error process. 

Rather than reinvent the wheel, the Gang of Eight ought to consider drawing on Canadian and Australian insights, and learning from the mistakes of other market democracies that have tried to build better immigration regimes.

I’m not ready to pass judgment yet. Some kind of immigration reform is worth pursuing. But so far, the Gang of Eight is flubbing some vitally important issues. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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