Tuesday, May 31, 2011

Has The Supreme Court Solved The Immigration Problem?

America changed last Thursday. While everyone was dreaming of hotdogs and television marathons, the Supreme Court quietly issued a decision that may end up solving the illegal alien problem. In a 5-3 vote, the Supreme Court upheld an Arizona law from 2007 that penalizes businesses that hire workers who are in the United States illegally. Democrats and big business should be very afraid.

The law in question is the Legal Arizona Workers Act. This law provides that Arizona employers who knowingly or intentionally hire illegal aliens will have their business licenses suspended or revoked. The loss of a business license in most states means that a company cannot transact business, cannot bring lawsuits or defend itself in court, and cannot do things like participate in workers compensation schemes (i.e. have employees). It is essentially, a death sentence for a business. But, you ask, what keeps employers from just turning a blind eye to avoid the “knowingly” requirement? The law further requires that employers must use the federal “E-Verify” system to confirm the eligibility of workers for employment.

This law, signed by Gov. Janet “The Village Idiot” Napolitano in 2007, was challenged by the Chamber of Commerce (a theoretically conservative organization), with backing from the ACLU (a known America-hating outfit). They argued that the law was illegal because immigration law is exclusively within the power of the federal government. Thus, Arizona has no right to pass any laws involving immigration.

Writing for the majority, Justice John Roberts shot this down. He wrote that Arizona’s employer sanctions “fall well within the confines of the authority Congress chose to leave to the states.” In other words, Congress controls the nation’s immigration laws, but it has allowed the states some powers and the power to punish employers who hire illegals is one such power. Each of the leftist judges voted against this except Kagan, who recused herself because she had challenged the law on behalf of the Obama administration.

So why is this important?

Well, let us be honest about illegal immigration for a moment. To convince you that they are tough on illegal immigration, many conservative politicians pound the table and loudly proclaim that if only we (1) built a wall and (2) deported all the illegals, we could solve the immigration problem. This is pandering.

The truth is that a majority of illegal aliens do not cross illegally over the border. Most overstay visas. Thus, putting up a wall will do nothing to stop them. Moreover, as long as they can climb over the wall, dig under it, go around it by boat or plane, or get passes to visit the US even on day trips, no wall will ever be effective. It’s a fantasy to think otherwise.

Deporting them is an equally false solution. There are 12 million illegal aliens in this country with more coming every single day. Last year, we deported 380,000 people. That is 1/31 of those who are here. It took 21,000 officers to do that. Imagine how many officers it will take to get the other 30/31 and tell me if paying for those officers is politically sustainable? Moreover, finding these people is not easy and will breed massive resentment as it would require neighborhood sweeps and a police state that rivals East Germany. And even if we can ultimately find them all, there is nothing stopping them from simply turning around and coming back. You would if you were dumped in Mexico overnight, so why would anyone think they won't?

The only realistic solution to this problem is one that prevents illegal aliens from wanting to come to the United States. There is considerable evidence that they do not come when and will not stay here if there are no economic opportunities for them. Indeed, during the last recession, nearly two million went home.

In light of that, consider what the Supreme Court has done. It has given states the power to take away the economic opportunities that attract illegal aliens. As Republican states one by one make it dangerous for employers to hire illegals, employers will stop hiring them. Liberal states will need to follow suit or get flooded by illegal aliens. As the economic opportunities in the US dry up, illegal aliens will stop coming to the US and those that are here will start to leave. It won't get rid of all, but it will make this problem infinitely more manageable.

Thus, while the federal government pretends to act and offers placebos in the hope of distracting the public from its complicity in working to bring in substitute labor and votes, the states can now fix this problem all on their own.

Even better, as far as Republicans should be concerned, this avoids the political damage of being seen to be the party of mass deportations. Better yet, while everyone is focused on the flashy new law Arizona passed in 2010, this one will silently go about its job of fixing this issue with little fanfare.


Tennessee Jed said...

Thanks, Andrew . . . a wonderful post and the best news I've heard about this subject in a while. I love Justice Roberts. If we had a candidate with his cred for POTUS . . . .

T-Rav said...

Andrew, I think the only time Nancy Pelosi made a cogent and intelligent statement was on the subject of illegal immigration, when she noted that "for every 50-foot wall you build, someone will bring a 51-foot ladder." At least I think it was Pelosi. Maybe not; making that statement requires insight and common sense, so it may have been someone else.

Although I would really, really like to snap my fingers and deport all the illegals, that is unfortunately not going to happen. The only way we're going to cut down on this is, as you said, by taking away the incentive for them to come here. And it needs to be done by simultaneously striking at these corrupt businesses, for reasons of fairness as well as public perception. Which I guess is my roundabout way of saying that I agree with you :-)

Tam said...

The other attractive benefits are education/healthcare/welfare. If those were earned and not given, we could give up our dream of a moat with gators.

Joel Farnham said...


Nice post. I don't think the Supreme Court has solved the problem, but it is the right step.

You do realize that with this post, the thought police will target you and kinder. Keep your powder dry. Wait until you see the whites of their eyes. Shoot for the nads.

Unknown said...

Andrew: I'm not giving up on deportation and border protection for a large number of illegals, but this is an important ruling by the court. I do think that this will help alleviate the problem, but now we have the enforcement problem of employers hiring casual labor by paying the illegals "under the table." Still, this helps immensely with construction companies and large labor-intensive corporations which have been flouting the law for decades.

AndrewPrice said...

You're welcome Jed, I figure a little good news is a nice way to start the post-holiday week.

The best part is that everyone is overlooking this because they're fixated on the flashier Arizona law still in the courts. In fact, that was all the ACLU talked about -- how this would affect that decision. This is the really important one.

History often works that way, where something very quiet happens and changes the world while everyone is distracted by something flashier that doesn't.

BevfromNYC said...

This should make the Libs feel all warm and fuzzy. The one argument that they have harped on (and hung their hats on) is why is Arizona targeting the illegals and not the businesses that hire illegals. This resolves that argument.

AndrewPrice said...

T_Rav, That is the round-about way of getting there! LOL!

That's right though about the ladder. People sometimes cite drops in the numbers going through where they have been building walls, but all that is is shifting people to other parts. And even then, they still find tunnels all the time. And as long as you can get a day pass to visit San Diego or El Paso, there's just no way to keep these people from getting here. You need to make them want to stop coming. And that's what this law finally allows.

This may not be as sexy as building a wall or deporting people, but it's the only method that is effective. That's just human nature. And look at the 2 million who left just because of the recession! That's incredible proof that this works.

I really think this decision will be a huge turning point.

AndrewPrice said...

Tam, I'm not saying give up the moat with the gators because what else would we do with all the gators we've been buying? ;-)

That's a good point though, that benefits need to be cut as well. That will be the next step. But this one is the crucial first step. This should eventually cut the problem to manageable numbers. It won't get rid of them all because some will continue to work on the black market (like the guys standing outside Home Depo in the mornings or the ones imported from China to work as virtual slaves) and some simply won't leave because they've turned this into their permanent homes. But will cut the numbers dramatically and that makes the problem easier to address.

AndrewPrice said...

Joel, Shoot for the nads! LOL! If there's anything that zombie films have taught me, it's shoot for the heads. ;-)

This won't entirely solve the problem, but this should make it manageable. This really is the only solution for getting rid of a huge chunk of illegal aliens and keeping them from coming back.

After this, we can look at other solutions for the rest. But without this, all we're doing is bailing water on the Titanic.

AndrewPrice said...

Lawhawk, I think it all needs to be part of the same picture. In fact, even if there wasn't an illegal alien issue, we still need to monitor the borders to stop things like drugs and illegal imports. But those simply won't stop or even slow this wave of people. The only way to stop this is to keep them from wanting to come here. To use a 1980s debate about drugs, "this is a demand side problem."

And frankly, when the effects of this kick in and the numbers start to drop by millions, then it will become a lot easier to deal with the rest. Right now, we're dealing with 1/31. That's total failure.

AndrewPrice said...

Bev, That's true. From a political perspective, this is much better all around. For one thing, it doesn't leave us open to the claim that we are deporting illegals on the one hand and encouraging them to come here on the other.

For another, it prevents the specter of us trying to deport 12 million people. Not only is that not even possible (or effective as they will come right back), but it will turn us into a police state that I don't think the voters will accept. You would literally need sweep minority neighborhoods checking everyone's papers and that's just not going to fly in this country.

Ed said...

Andrew, This is great news! You would be amazed how many illegals get hired out here because nobody cares. I'll tell you something else, you're absolutely right about the wall. That's a stupid idea. They will go around it, under it or over it. No wall is going to stop them. As you say, would a wall stop you? I think not.

The only way to get these people to leave it to make them want to leave. That means no jobs, no welfare, no education for their kids. We also need to change the citizenship rules to require the parents to be here legally. If we do that, then I'd even agree to an amnesty for those that are left here after a few years.

Unknown said...

Andrew: I'm not in major disagreement with you, I just think that border enforcement and deportation have been totally inadequate. This cat needs to be skinned in as many ways as possible. Democratic schemes to turn illegals magically into legals requires constant vigilance on all fronts, the courts being just one of the tools available.

It's not a sure thing that this ruling means that the high court will find similarly in the other pending cases. CJ Roberts said in his opinion that the power to regulate immigration is unquestionably a federal power. That means he and probably the other eight justices are hesitant to extend the logic of Whiting to the other pending cases. The Constitution grants the federal government the sole power to establish a uniform rule of naturalization, but the justices have consistently held that meant exclusive enforcement of immigration law. I think that the Constitution was silent on enforcement since the Founders felt that enforcement, not establishment of naturalization/immigration law was a joint state/federal power. I'm in a distinct minority on that issue. This might not bode well for the pending cases addressing enforcement provisions relating to matters other than employment.

AndrewPrice said...

Ed, You would agree with an amnesty? At what point?

In terms of your other suggestions, I think it's all part of one big picture. I would love to see the citizenship rules changes, but I doubt that will happen -- it's just too complex to change the constitution when all the liberal states will put up a fight. Of course, that might be possible as part of some larger deal. Hmm.

Unknown said...

Building walls is a necessity, by the way. Pelosi says something very obvious, but only partially true. Would we build a prison with high walls, then leave the prison unattended? The wall is no good without guards. The same is true of the war on the border. All the high-tech methods (as well as low-tech walls) are meaningless without boots on the ground. That's not a legal matter as much as a matter of executive will. The Obama administration (as well as the prior Bush administration) have been unwilling to put those boots on the ground, and that renders walls and virtual walls useless. Moats and alligators won't solve the problem either.

The common sight in California's cities and suburbs is illegals gathered in the parking lot at the local 7-11 waiting to be hired as casual labor by people who won't be reporting anything to the state or federal government. That's a lot of "employers" to find and prosecute. All the arrows in the enforcement quiver must be used, with sanctions against employers being only one (albeit, a very major one). Cut off Medicaid, welfare and food stamps. Stop the flow across the border. We should not need to have a lousy economy and employer sanctions as the sole means of stopping illegal immigration. Watch what happens when the economy turns around after the ejection of Obama from the White House. I simply don't want to rely on employer sanctions as the sole deterrent to illegal immigration. Most al Qaeda terrorists won't be coming here for jobs.

AndrewPrice said...

Lawhawk, I think you're right about the law. I think you and I both said from the get-go that Arizona's other law is probably doomed because it's looking to step into an area where Congress has passed a specific enforcement law that does not include the states. It's possible the court will say "well, it doesn't actually exclude the states from helping" but that's not likely. So I think the other Arizona law is doomed. And you're right, this decision is consistent with the idea that Congress holds the power to regulate state involvement.

That said, I also don't think that other law is nearly as important as this one because you just can't deport this problem -- it's too vast, too hard to find.

In terms of border control, I honestly just don't think it's possible as a means for stopping illegals. As long as they can get permission to cross the border, how do you stop them from simply never going back? And we will never (nor should we) close our border to visitors -- especially with the business contacts we're developing.

Not to mention, where there's a will, there's a way. So no wall will keep people out. They'll find a way.

I'm not saying don't try to protect the borders, but that's just not a solution for this problem -- it's a solution for other problems (like smuggling), but not for this problem.

Unknown said...

Andrew: The laxity of border enforcement to date has left the current illegal population problem practically insoluble. But even though border enforcement is not the solution, it is part of the solution. No law enforcement solution is ever perfect, or even near-perfect.

I wouldn't close the borders to visitors either, any more than I would close the airports or the seaports. Still, enforcement has to be utilized, and in a much-improved way. It makes no more sense to stop every "Hispanic-looking" tourist at the border than it does to stop every "Arab-looking" tourist at the airport. Enforcement has to be sensible and sophisticated. But I still believe that we can create secure entry points at the border and make the rest off-limits. It wouldn't be easy and it wouldn't be perfect, but it's better than doing nothing. It's also the reason that I agree with you on the importance of the Supreme Court decision. It's a major step, but not the only step.

AndrewPrice said...

Lawhawk, Border control and the rest are part of the picture, but the wall simply won't stop or slow this tide. The majority of them are not sneaking over the border -- they are coming with permission.

And as for those sneaking over the border, where there is a will, there is a way. Hence, they tunnel, they climb over the wall, they go around it on foot or by boat.

The wall is a placebo.

Moreover, the wall is actually counter-productive in some ways. For example, there are a group of illegals who came here legally as farm labor and would return home each year. Once the wall started going up in Texas, they stopped going home because they were afraid they couldn't get back into the US.

Illegal immigration is a demand side problem. Once demand is under control, then enforcement and border controls will work. Unless we can do that, they are meaningless.

This change will go a long way to stopping that. It won't do it alone -- the 7/11 guys will need to be stopped with a combination of fines or jail time for people who hire them and immigration round ups -- but this is the critical part of the picture.

AndrewPrice said...

Lawhawk, I agree. Smart border control is definitely part of the solution. But my point is that even if the wall was perfect, that won't come anywhere near stopping the illegal immigration issue.

It's definitely necessary to develop effective border controls (for many reasons) -- I totally agree with that. But the real solution will involve keeping them from being able to come here and get rich. Until that stops, they will find away. In fact, the most recent "new route" is to come through Canada.

Fixing this problem will involve cutting off illegals, i.e. punishing those who hire them (like Arizona does and fining those who hire them off the streets -- combined with deportation). And some form of guest worker program to satisfy farmers and the illegals who would come regardless. That way we know who is here, we can tax them, and we can control the flow of people.

Then we use the wall (as well as port controls) as a way to monitor smuggling and whoever hasn't gotten the message.

CrispyRice said...

Andrew, thanks for the article! I haven't heard anything about this and it sounds really encouraging. I hope Obama doesn't get anyone else on the Supreme Court though because it sounds like one more liberal could turn this around.

Unknown said...

Andrew: "And as for those sneaking over the border, where there is a will, there is a way. Hence, they tunnel, they climb over the wall, they go around it on foot or by boat." I agree. But that works because of the lack of boots on the ground that I believe to be an absolute necessity. Again, it's the mistake of relying on a wall alone.

We can only do what we can do at proper border entry points, but they're not tunneling under the crossing at Tijuana, they're doing it away from the view of border agents. They're not crossing in the middle of the desert accompanied by coyotes and drug cartel members because it's so easy just to come in through the border crossing points.

Any legal seasonal worker with a proper work visa stupid enough to thing that a wall will suddenly prevent him from coming back into the US for the next growing season is beyond the reach of logic and law anyway.

All of that said, I truly hope that the enforcement of immigration law as it relates to employers is the deterrent we all pray it will be. Then perhaps I'll be able to relax about the border.

AndrewPrice said...

Crispy, That's probably the most critical reason to get a Republican into the White House. Many of these decisions are 5-4. And if we somehow lose a conservative justice and Obama get to appoint a replacement, then we're looking at 4-5 and out country will head back in the wrong direction. But 6-3 would provide us a nice cushion. Let's hope nothing happens before we can get a solid, smart Republican into the White House.

AndrewPrice said...

Lawhawk, I think the evidence shows that this will make a huge dent in it -- it won't stop it, but it will make a big dent. Seriously, 2 million people in one year because of the recession is proof of the potential power of this.

But, as I think we both agree, that's just part of the picture. We need the rest as well.

At the borders, we should at the very least be doing what other countries do. I don't understand why it's supposed to be evil for us to do things that countries like Germany and France and Japan and Mexico all do at their own borders? Seriously, are we supposed to be international suckers?

In any event, it will be interesting to see how this changes the nature of the problem and then to look at new solutions when (and if) the number of illegals shrinks dramatically.

T-Rav said...

Andrew, I still think that if Mexico (or anyone else) gives us crap about our horrible immigration policy, we should just reply, "Oh, so we should have a kinder, gentler system in place, like the one on the Mexico-Guatemala border? Right? Hello?"

AndrewPrice said...

T_Rav, I totally agree. If someone criticizes us, we should turn it around and immediately criticize them for their own practices and tell them, "we'll worry about our own practices when you are up to our level."

You know, the other thing is that if Mexico wasn't a basket case, our problems wouldn't be nearly as bad as they are. We still get flooded from all over the world, but Mexico is clearly the biggest offender.

Notawonk said...

andrew: very well stated. it's never been about fences or deportation; it's always about taking away the incentive. we have great laws on the books that should be enforced, and that the SCOTUS has said so on one of those laws, their decision should strengthen all of those laws.

AndrewPrice said...

Thanks Patti! And I think that's right. The Feds have all the laws we need on the books, they just need to enforce them! It drives me nuts when their answer is "we need more laws." No, you don't. Enforce the ones you have.

I think, truthfully, this has been the biggest scam the Feds have ever pulled. They make a lot of noise about illegal immigration but go out of their way to do nothing about it. I think this is a combination of big business wanting the workers (and keeping wages low), and the left wanting the voters. The people who get lost in this are the 70% of Americans in the middle who find themselves in a crime epidemic and who find their citizen becoming legally meaningless.

Americans love immigrants. They can't stand lawless waves of humanity sneaking across the borders.

Ed said...

Andrew, This may not be very popular, but if the numbers get down, then I would be willing to consider an amensty for the ones who've been here a long time and have built lives here. I don't want to toss out people who have effectively become Americans. But I would not agree with that until the number get down from 12 million to something lik 1-2 million. I also wouldn't let it apply to any criminals.

AndrewPrice said...

Ed, That's a good point. I don't know that Americans would disagree with you if we reach that point. But as long as there are 12 million here and more coming every day, I don't think solutions like that are possible.

Interesting thought, thanks.

StanH said...

Check out “Operation Wetback,” initiated by Eisenhower in 1954, very successful and was almost all enforcement, and coercion. There was very little in the way of a fence, but the will, and leadership to do something about it.

Not one thing will be the answer but all of the above, cut off any kind of welfare, hit employers, build and man the wall, law enforcement, repeal NAFTA, etc.

AndrewPrice said...

Stan, You make a good point, this has been an all around failure of our enforcement efforts and, as you note, we did much better at this the past when he actually tried to enforce our laws.

Hopefully, things are getting more rational and we can get this issue solved. That would be good for our country, good for Mexico, and good for all the people who are here legally.

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