You Decide

"The debate over illegal immigration has managed to conflate two separate issues -- American immigrant citizenship status (and related requirements) on the one hand, and the economic consequences of having limited access to unskilled workers in the domestic labor pool. The two issues are not one and the same. Thus, resolving the complex choices associated with each will be easier when they are treated differently.

On the one hand, US immigrant citizenship policy as modified in 1986 by the Immigration Reform and Control Act -- which attempted to address seasonal temporary workers -- has been an abysmal failure. The act made it unlawful to knowingly hire an undocumented worker and provided for a one-year amnesty for illegal aliens who had already worked and lived in the U.S. since January 1982. Although at the time there were less than 3 million illegal aliens in the U.S., the grant of amnesty sent a signal to the world that the U.S. would no longer be serious about its border. Combined with a phasing out of employer sanctions, predictably the number of illegals has swelled nearly 4 times to more than 11 million people (many of whom assume that a new amnesty is waiting just around the corner).

Today it is vital that we adopt a policy that separates those aliens seeking permanent status from those only interested in temporary employment opportunities. Unfortunately, much of the present debate treats the groups as if they are one and the same. By failing to make this distinction, we risk going forward with an updated-but-incoherent program.

Economic Refugees, Labor Flexibility

First and foremost, policymakers must recognize that there are significant economic consequences to allowing geographical barriers to determine wages -- particularly in the context of low-skilled workers. Every American household pays an arbitrarily (and therefore wasteful) higher price for the goods and services that are provided when they are denied the benefit of competition simply because of where they live. Although often mentioned in the context of goods, the principle is no less true of labor costs. A rational temporary worker plan recognizes that we exist in a global economy that requires labor flexibility and allows honest workers interested in coming to America to provide for their families while respecting our laws.

Let's look at it from the low- or unskilled-laborer's perspective: Typically these workers are economic refugees plagued by the corrupt and chaotic economic regimes and attendant policies of Mexico or other countries in Latin America. The problems in these countries are not America's fault. Arguably, many of these workers would likely challenge their own governments if they didn't have America as a viable outlet. Nevertheless, it is in our economic interest to allow them to enter our labor force if not but to help maintain our own economic vitality.

To be sure, the presence of these workers has the effect of deflating salaries among unskilled or low-skilled laborers, but this consequence is offset by the benefit of increasing the standard of living for Americans which occurs because the lower priced goods and services they provide are made more readily available than they would be otherwise. Unless this process is only good when Wal-Mart does it, it should be recognized as an integral part of international competition.

And such facts are borne out in the numbers. According to the President's Council of Economic Advisers 2002 Economic Report, immigrants effectively raise the income of Americans by upwards of $12 billion a year. A rational temporary worker program would allow us to match foreign workers with American employers for wages that no American is willing to take, but does not require that we throw in citizenship as part of the deal.

Unfortunately the 1986 act had the unintended effect of turning seasonal illegals into long-term permanent lawbreakers by increasing the risks of crossing back and forth. Alternatively, a temporary legal status would alleviate much of the pressure for illegals to seek permanent status since they would be free to come and go across the border at will. Under the rules today they have the opposite incentive. Why, because the barriers to frequent entry are so high that once they come in (legally or otherwise) they have every incentive to make a permanent residence of America including resorting to having "anchor babies" (children born by illegal aliens in the U.S. that automatically become citizens). And by reducing the flow of illegal aliens, we can apply border enforcement resources more efficiently against those who present a threat to the country.

Ultimately, since the primary motivation for these workers is not citizenship, there should be no easy footpath to citizenship built into the program. Working in America is an economic opportunity of a lifetime -- in other words, getting the work permit is its own reward. With a temporary worker program, economic migrants would be given a chance to obtain wealth and related economic sustenance they can't get in their home country. Therefore, there is no need to offer citizenship as an added inducement.

Putting the Heat on Illegals

Once operational, those individuals here in America illegally will face a choice. Go to their home country and apply for the program or watch as others do exactly that while they miss out on the benefits of legal status. Employers will quickly demonstrate that they far more prefer a steady and reliable supply of legal unskilled workers (who have all passed background checks) to the outlaw labor force they rely on today. Ironically, it will be the illegal aliens who will feel the heat of competition most, because when the program is up and running and operating on a first-come-first-served basis, those that join in first will see the benefits sooner. (And by charging a fee for this, a temporary worker program could likely be used as a revenue source to pay for itself as well as provide additional border enforcement resources.)

Ideally rather than a fixed limit, the program would have a fluctuating fee level which would rise and fall depending on demand. Starting at around $1500 (the going rate for smugglers) and rising to say $10000 per applicant, potential workers and their employers could decide for themselves what the ultimate level should be. On the other hand with a floor of $8 billion and a ceiling of nearly $55 billion in revenue even if only half of the undocumented workers joined the program, the American taxpayer would easily come out ahead.

Additionally the plan should have two features. First like worker's comp programs all across the nation, it would require potential employers to be responsible for the social services used by these workers. Employers could provide health insurance if they chose. If not, whenever the temporary workers are provided assistance, hospitals and other government service providers would be allowed to seek reimbursement from the employers instead of sending the bill to the American taxpayer. A second feature would be that participants in the program would agree that their participation in the program in no way may be used to advance or assist them in seeking citizenship status.

And the program would have other benefits as well such as being attractive to fathers and older sons and single women who generally prefer to work seasonally or annually and then return to their home country. In a return to the practice prior to the act of 1986, participants in the new program would have little incentive to uproot their entire family or to have "anchor babies" in order to protect their ability to maintain their presence in the U.S.

Border Security

On the other hand, for those individuals uninterested in employment opportunity, the U.S. should signal a reinvigorated commitment to controlling border security and American citizenship. The U.S. has every right to restrict who it will invite to become an American and to set the terms. Indeed, any policy that rewards those who enter the country illegally is a poor one.

In fact, knowing who is crossing our borders has taken on a greater urgency -- particularly after 9/11. The U.S. should commit itself to a policy of returning every illegal alien caught crossing the border without exception (and rules like this could help provide incentives to other countries to help). New approaches such as interior repatriation for Mexican nationals (which transports illegals to interior portions of Mexico instead of simply escorting them back across the border) should be employed, and greater use of electronic surveillance at border sites should be undertaken.

The completely unworkable policy of "catch and release" should be ended within the next 15 months. Under this practice, if non-Mexican illegal aliens are apprehended they are released and told to return later for an immigration status hearing. As you might imagine, 75 percent of these persons simply fail to ever show up for their day in court. Also, the US should commit the resources to allow expedited hearings and new detention facilities so that once illegal aliens are caught by border patrol, they aren't allowed a chance to escape deportation, and instead are forced to actually appear in court. As illegal border crossings of economic migrants are reduced, interdiction of other drug smugglers and related criminals will be much easier to accomplish.

Ultimately, by separating immigrant citizenship policy from a temporary unskilled labor program, America will be living up to its own ideals -- keeping our borders open to legal travel and honest trade while securing them from exploitation by criminals, terrorists and drug traffickers. And by ensuring that citizenship is granted solely to those who understand and value the benefits of being an American, we'll protect our culture and the American way of life.

Horace Cooper is an assistant professor of law at George Mason University. "