Immigration Reform and Legalization

Midterm elections have come and gone in the United States and with Republicans controlling both the House and the Senate, the prospects for immigration reform seem grim, at least at the level of rhetoric. House Speaker Boehner joins the next expected Senate leader McConnell in warningPresident Obama against executive action. Meanwhile, Immigration and Customs Enforcement (ICE) continues with a record 438,421deportations that may be inconsistentwith US law and has announced the construction of a new family detention center in Dilley, Texas run by the notoriousCorrections Corporation of America. In my home state of Oregon, voters overwhelming repealed a state law undocumented immigrants to receive driver’s cards. (For my take on this last issue, see here.) 
In the coming months, we will learn if President Obama will take some sort of executive action   by building on the Deferred Action for Childhood Arrivals to grant at least temporary relief from deportation and permission to work for some unauthorized immigrants. This seems the best short term alternative since a legislative solution with a Republican House and Senate seems unlikely for the immediate future.
Nevertheless, as bleak as things look, immigration reform of some sort will eventually occur due to the unsustainability of a democratic country with 11.3 unauthorized immigrants who work, pay taxes, participate in the community, and raise families, changing demographics, and – here I am optimistic – popular resistance to a system that destroys families and individual lives.
Most likely, immigration reform will have the following components:
1) Measures claiming to make the border more secure such as adding more Border Control Agents, increasing surveillance, and expanding domestic enforcement measures.
2) An increase in temporary worker visas.
3) A program allowing for a significant number of unauthorized immigrants to adjust their status.
This is essentially what the 2013 Senate Bill proposed under “earned legalization”.
All three types of measures raise moral issues. Border enforcement budgets have grown rapidly over the last decade with an accompanying cost of human lives lost to the desert.
(They are also unlikely to be effective given that many unauthorized immigrants come to the United States legally and overstay a visa. Also, in a recent article Douglas S. Massey, Jorge Durand, and Karen A. Pren found that the increase in border enforcement had little effect on people travelling without authorization to the United States but did deter people from returning – i.e., the rise of the unauthorized population in the US is partly caused by enforcement!)
Temporary migration programs are usually exploitative and prone to many well documented abuses. (I plan to blog in the coming months about some of the important contributions philosophers have made to the justice of temporary worker plans.)
I want to focus on the moral case for legalization which is by far the most controversial measure, despite being fairly commonpolicy tool in the United States and Europe. I think there are (at least) two major ethical arguments for legalization.
First, Michael Walzer writes in the second chapter of Spheres of Justice:
No democratic state can tolerate the establishment of a fixed status between citizen and foreigner (though there can be stages in the transition from one of these political identities to the other). Men and women are either subject to the state’s authority, or they are not; and if they are subject, they must be given a say, and ultimately an equal say, in what that authority does.
Walzer had in mind the Turkish “guest workers” in Germany. (“Guest workers” deserves scare quotes because in this case many of the “guests” had lived in Germany for decades or even grown up in the country.) Walzer goes on to note that guest workers are exploited or oppressed (I would say exploited and oppressed) because their legal status prevents them from improving their plight.
Walzer’s point holds for unauthorized immigrants in the United States, many of whom have lived in the country for years if not decades. Denying people legal status creates an underclass that harms not only those people, but their children and their communities. Whether people like it or not, unauthorized immigrants in the US are permanent residents. No one seriously believes that all of the unauthorized immigrants can be deported, at least without abandoning core civil and human rights. (I encourage anybody who wants insight into the toll that immigration raids take on individuals and families with and without legal resident to read Bill Ong Hing’s Institutional Racism, ICE Raids, and Immigration Reform.) Moreover, migrants are structurally embedded in the economy (again, Massey, Durand, and Pren found that unauthorized migration is largely a response to U.S. labor demand).
Second, Joseph Carens in “The Case for Amnesty” suggests that irregular migrants should receive legal status if they have lived in the country for a sufficiently long period of time – he proposes five years. In his recent book The Ethics of Immigration, Carens suggests that it is social membership that grounds this. People living in a place over time become members and develop connections with the community, developing a “dense network of relationships and associations” (164) that are essential to their interests and identities. Social membership gives rise to moral claims since it something we should promote and respect.
It may surprise some that Carens’ position is close to the views of President Regan who said “I believe in the idea of amnestyfor those who have put down roots and lived here, even though some time back they may have entered illegally.”
Walzer’s argument is based on the nature of our political community. As a democracy, we cannot permanently treat a large number of people as an underclass without betraying our own values. Carens’ argument is based on the fact that unauthorized immigrants are members of our communities and that these ties matter. Ripping people from their social environment causes grave harm to everyone involved.
What are some of the arguments against legalization?
One argument is that we shouldn’t reward illegal behavior. The problem with this argument is that being in the country without authorization is a relatively minor offense in administrative law. Permanently denying people the opportunity to legalize their status is disproportionate to the offense, especially given that this country eventually becomes their home.
Another argument is that unauthorized immigrants should have waited their turn and come to the country legally. Sometimes commentators distinguish between immigrants who play by the rules and those who do not. As I mentioned in a previous blog post, there is no legal process for most people in the world to come to the United States if they do not have a close family member or have a strong case for refugee status. 
Of the three components of immigration reform, increased border security, temporary worker visas, and legalization, legalization ought to be the least controversial. It is the only one that is supported by strong moral grounds. Currently, millions of people in the United States live in a permanent state of vulnerability and fear that they will be torn from their community, lose their families, or end up in the grotesque, Kafkaesque system of immigration detention. We should do better.

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