Migration Policy: Devolution or Centralization?

            The setting of migration policy is, and has been in modern times, a function of national governments.  The control of movement of people into (and less frequently out of) national territory has been seen as a prerogative of the sovereign.  Even in federalized states such as the United States or Argentina, migration policy rests with the national government.  This is a product of internal power dynamics between the federal and state governments as much as a by-product of the Westphalian system of independent sovereign states.  However, there has been a growing global discussion questioning this status quo.  Consider the recent upsurge in state-level immigration laws enacted in the United States.  According to the Immigration Policy Center, in 2006, 570 state-level immigration bills were introduced; 84 laws were enacted and 12 resolutions were adopted.  However, in the first quarter of 2010, 1,180 immigration bills were introduced; 107 laws were enacted, and 87 resolutions were adopted.  At the local level in the United States, the emergence of the “sanctuary-city” reflects another attempt to devolve immigration policy away from the national epicenter.  Both Canada and Australia have regional (that is, sub-national) immigration programs.  For example, in Canada all of the country’s provinces may nominate a certain number of people for visas each year.  This trend reflects the fact that local and regional governments are the most affected by the costs and benefits of immigration.  The current national-level policies often fail to reflect these specific needs or are too slow in responding.

At the same time, regional (supra-national) integration continues to trundle along, glacially assembling blocs of countries along geographic or ideological criteria.  The most famous scheme is the European Union, but there are a plethora of such integration plans with varying goals and levels of institutionalization.  Regional integration can take the form of free trade areas such as NAFTA or customs unions like MERCOSUR or regional trade blocs such as ASEAN or the African Union.  Through a process denominated “spillover” by Philippe Schmitter, integration schemes tend naturally to grow beyond their initial purpose to encompass more policy areas.  The European Union began in the 1950’s as a coal and iron agreement between France and Germany.  More recently the customs union between Brazil, Argentina, Uruguay, Paraguay and Venezuela (MERCOSUR) has expanded into migration policy and lead to the establishment of a special visa for member citizens.  Given this hypothesis of integration spillover, migration policy will increasingly grace the agendas of such integration bodies.  For example, the European Commission is currently considering the creation of a Commissioner for Migration.  

As local and sub-national actors create immigration policies to respond to their real world needs and supra-national integration actors are forced to respond to the transnational impacts of human migration, the Westfalian nation-state is stuck in the middle.  What is the appropriate balance?  Where can effective and coordinated immigration policies be incubated?  Unfortunately, the answer must be a mix of all three levels: the micro, mezzo, and macro.  This will require a level of information sharing and communication never before seen in human governance.  It is a challenge that confronts many policy areas, not just migration.  The increasing global connectivity of people, as well as the growing agency of the individual, makes sensible local, national, and supra-national policymaking essential.   There is some hope that information technology can offer solutions to this gargantuan problem, but these tools are by no means a panacea.  Further complicating the task are political tug-of-wars between policymakers at each level, all trying to maximize their political clout and relevance.  While local and supra-national actors step into the breach of policy making around immigration, the nation-state will not lightly divest itself of such a powerful and symbolic policy area.  The benefits of coordinated and inclusive migration policies are not hard to imagine, however neither are the costs of establishing such a system.  

Like most political endeavors, change is unlikely until the costs of inaction so clearly outweigh the costs of action that policy makers are essentially forced to move.  The current trend seems to indicate that we as a species are headed in such a direction.  Global population continues to increase and migration-related policy issues such as public health and environmental protection are increasingly gaining political salience.  Global inequality and armed conflicts add pressure to the mix.  The need for cogent, multi-level migration policies will grow ever more apparent, even as reactionary and xenophobic responses also grow.  Fortunately, sensible migration policy can only be achieved thought true and representative democracy, thus the struggle for such migration policies is also the struggle for renewed democracy across the globe. 

Sanctuary Cities in the Era of S-Comm: update from the United States

As 2014 rolls along, the political and media attention on immigration reform in the United States has waned.  With midterm elections in November, it seems increasingly unlikely that Congress will be in the mood for tackling a divisive and emotionally charged policy topic.  In the meantime, the hodgepodge of often conflicting immigration laws and policies continue to govern.  In the United States, immigration law has long been declared the sole province of the federal government.  That is, government bodies further down in the federal hierarchy, such as states, counties and cities, have no authority to legislate with regard to immigration.  This “bright line” rule is actually much less monolithic that it initially appears.  Immigration and immigration policy have proven to be much more than mere visas, border fences and foreign relations.  A large part of immigration is inexorably connected with the local lives of immigrants and their interactions with their communities and the cities and counties and states where they live.  Because of this reality, state, county and city governments are often explicitly involved in legislation that impacts the lives of immigrants and ultimately shapes immigration policy in the United States.

                So-called “sanctuary cities” are prime examples of this reality.  Sanctuary cities are localities that have chosen not to participate in federal programs aimed at removing immigrants who lack proper paperwork.  These policies are diverse and can range from official, written ordinances to unwritten policies communicated to law enforcement or other local officials.  There are well over a hundred cities with formal sanctuary policies, including: Washington DC, Salt Lake City, Dallas, Houston, New York City, Chicago, Phoenix, Los Angeles and New Orleans among many others.  For a complete list, this restrictionist website continues to be updated.  Here is an example of a San Francisco’s sanctuary law.  One of the main points of contention is policies regarding what to do with detained immigrants who lack documentation.

                Secure Communities (S-Comm) is a policy, launched by President George W. Bush and ramped up by President Obama, aimed at increasing removals of undocumented immigrants with criminal records.  The political discourse promotes S-Comm as a security policy that fosters coordination between local police and federal immigration officers in order to remove dangerous criminals (who happen to be immigrants) from the United States.  However, a recent report from TRAC at Syracuse University found that only 12% of removals in FY2013 associated with S-Comm were of individuals with serious “level 1” criminal convictions, such as homicide or robbery.  In 2013, for example, there were a total of 368,664 removals according to the report.  Homicide (1,172) and robbery (3,341) convictions together accounted for 1.2% of the total.  Traffic offenses, on the other hand, resulted in the removal of 47,249 individuals, or nearly 13% of total removals in 2013.  The statistical data belie the political discourse and reveal S-Comm as a much broader dragnet aimed at meeting removal and detention goals. 

                The typical procedure begins with an undocumented individual being detained by local police for some reason.  S-Comm then commands that police check the individual against immigration databases to determine the legal status of the person.  Should the search return a positive hit (ie. the detained person does not have legal status or is otherwise sought by federal immigration authorities), then local police are obligated to further detain the individual until federal immigration authorities can take custody.  Perhaps a hypothetical can flesh out the process more clearly.  

            Police are called to Kate’s house responding to a call from neighbors worried about domestic violence.  When police arrive, Kate, who does not speak English and cannot communicate with officers, is at home with her husband.  Her husband tells police that she attacked him.  Police take Kate back to the police station to defuse the situation and get her side of the story from other officers who speak her language.  According to S-Comm procedures, officers run Kate through the federal immigration database and it is revealed that Kate does not have immigration status in the United States.  Now instead of releasing Kate on her own recognizance, S-Comm dictates that she be held at the police station until federal immigration agents can take her into custody and begin removal proceedings.  Given many mandatory detention requirements (another article entirely) it is possible that Kate will remain in detention until her removal, often several months later.  What was likely a minor criminal offense or perhaps only a misunderstanding has now spiraled into a life-altering removal process against a woman with no criminal background.

                Sanctuary cities and S-Comm conflict head on in situations like the hypothetical above.  Often sanctuary city laws will refuse city funds or openly direct employees (including police) not to cooperate with federal immigration officials.  Thus, instead of checking Kate in the database, police would conduct their investigation and release Kate like any other suspect in a similar case.  Alternatively, the city may refuse to hold Kate beyond the time needed for police to resolve their investigation or as otherwise called for by law.

 

In 2013, S-Comm became nationwide and mandatory.  Previously, local governments could opt-in to the program or refuse to cooperate.  Making the policy mandatory raises serious questions as to the constitutionality of the program.  A recent law review note outlines how S-Comm violates the principles of federalism and anti-commandeering set down by the Constitution and case law.  Without delving into the legalese, it is enough to understand that the Supreme  Court of the United States has forbidden the federal government from forcing state governments (and their employees) to carry out federal mandates.  According to the court, federalism and the 10^th Amendment proscribe federal commandeering of local authorities.  As currently structured, S-Comm does just that when it makes participation mandatory.  The SAFE Act currently before Congress (though highly unlikely to pass), would remedy this federalism problem, by conditioning federal anti-terrorism money destined to non-complying localities on participation in S-Comm.  This type of federal funding manipulation is expressly permitted by Supreme Court precedent.

In the meantime the flood of S-Comm removal continues, driving sanctuary cities to retrench.  Lawyers and law students may worry about the constitutional implications of S-Comm, but police and local law enforcement are concerned with public safety.  Some policy makers and police chiefs worry that S-Comm is having a “chilling effect” on relations between police and the communities where they work.  If residents fear that they or their family members may meet a fate like our hypothetical Kate above, the argument goes that they will be less likely to call police in the first place.  Where communities do not trust police, it becomes difficult for police to secure public safety effectively.  Some states have taken action.  In October 2013, California passed the Trust Act which directs local authorities not to cooperate with S-Comm.  Other states and localities, such as Massachusetts, Illinois, new York and Washington DC have enacted similar laws.  The conflict between S-Comm and sanctuary cities is far from over and is likely to continue until there is a concerted effort at comprehensive immigration reform.

Imagine a World without Labor Certification

Imagine a world without labor certification.  For 99.99% of the world who are enviously ignorant of what labor certification is, the thought experiment is not difficult.  However, for those of us who know about or work in labor certification it is difficult to imagine the modern practice of immigration law in the United States without this onerous bureaucratic gauntlet.  For those of you in the lucky 99.99%, labor certification is a process that requires potential immigrants wishing to enter the US for work to get advanced approval of their work visa by the Department of Labor. 

The Department of Labor (DoL) is much maligned, but in the field of labor certification, much of that grousing is warranted.  In essence, a labor certification requires a potential immigrant to prove to the DoL that their employment in the United States will not “take a job” from a native US worker and will not negatively impact the local wage scale.  Labor certification is a stillborn migration policy that not only fails in praxis, but makes no sense in theory. 

The theory of labor certification is for the US government to protect domestic workers from foreign competition.  Given our modern understanding of foreign competition, labor certification is a laughable attempt to achieve this goal.  In 1965, when the labor certification process became law, the pressures of globalization and world-wide competition were quite distinct.  Many developing countries were just barely edging into modernization, telecommunications were mediaeval compared to modern standards and the world was sliced into ideological blocs that restricted the movement of everything, from goods and services to ideas and people.  Perhaps, only perhaps, at that time did labor certification make sense.  Today it is as relevant as typewriter ribbon. 

Competition from foreign workers is everywhere.  It fills your local big box store; it is the basis for your Black Friday sales.  For those of you who remember the “Buy American” campaign, consider filling your stockings this year with only American-made products.  Little Jimmy gets a ratchet set and Molly gets a handcrafted wooden toy truck that she wants about as much as a splinter.  Check out this site and compare to what you actually buy and want.  The impact of globalization is obvious.  “US jobs” have been “shipped overseas” for decades now.  Detroit, once the epicenter of US manufacturing and exports, has been downgraded from a city to town or burg or some sort.   

The idea that we can protect US jobs by limiting immigration is ironically contra factual.  Stemming the tide of more driven people, willing to work more for less, has possibly kept wages high in this country.  High wages, in turn, drive companies out of the US, taking their tax and infrastructure benefits with them.    In fact, as global production and service chains expand and technology efficiencies continue to pincer labor, wage competition among local labor may be one of the only mechanisms that would allow for adjustments to help the US adapt to the modern globalized economy.   Labor certifications make sure that this market adjustment will never happen. 

Finally, with respect to theory, labor certification is based on insidious nationalist, racist and selfish attitudes towards production and consumption.  The dialogue is about “our jobs” being “taken.”  This fallacy of entitlement is deeply rooted in human in-group out-group thinking that has accompanied us out of the jungles and savannahs of our pre-history.  Today the fallacy rings hollow.  Consider “US companies” such as Apple who shift sales and operations around the globe to enjoy tax benefits in Ireland, for example.  Modern global companies are not national partisans, why then should labor?  Jobs today go to the most competitive, in price, skill or quality.  It is no longer possible to protect a dull and complacent work force.  Labor certification is therefore futile. 

With regard to the praxis, labor certification is an exercise in waste.  Because labor certification is required before a visa can be issued, the whole process must be undertaken before the immigrant arrives in the US.  This means waiting for and dealing with an unwieldy and opaque government bureaucracy from outside the US.  The intricacy and layers of requirements to establish a successful labor certification compel would-be immigrants to use attorneys, at great expense. Once the labor certificate has been submitted, a government employee, at public expense, then endeavors to predict if that particular employment would adversely affect US workers and wages.   Given humanity’s utter inability to predict just about anything, this process borders on the absurd.  What is specifically required here is the ability to extrapolate from the micro (the individual worker) to the macro (the economy).  Social science and economic theory are notoriously incompetent with regard to this task.  Ultimately, labor certification requires the staffing of a large government organization tasked with the impossible all in the name of some goal that lost its relevance some time during the Carter administration.  Simply put, labor certification is costly and pointless.  Beyond generating employment for bureaucrats and attorneys, the system serves little purpose and policy makers should consider more dynamic and real-world solutions to the regulation and management of human migration.

A Comprehensive Immigration Reform Plan (3 easy steps)

The state of the world at the close of 2012 has not helped prioritize immigration reform as a short-term goal of the US government.  The self-imposed fiscal crisis, gun violence, Syrian civil war, political chaos in Egypt and the continuing economic problems in Europe are all issues that crowd legislators’ agendas.  However, the wheels of reform may have been set in motion by the demographic political imperatives looming in the next election.  Put simply, the Republicans feel out of touch with growing Latino and Asian populations and there are murmurs that immigration reform could be a key issue.  The political impetus for this push is clearly to win the hearts and minds of these growing segments of voters.  However, the economic impetus for immigration reform may be far more compelling. 

A recent Economist article examining the oncoming “demographic squeeze” bears ill news for the US.  While US population growth is still faster than every developed country and trails only India and China in percent growth, decreases in fertility, immigration and population aging are all taking their toll on the US economy.  Consumers of US news can see this manifest in the ongoing Social Security and MediCare crises and the diminishing ability of today’s workers to supports today’s pensioners.  The US is not alone in facing the Malthusian risk associated with economic and social development. With fewer young people and larger elderly populations living longer than ever, the ability of the state and the economy to support the current structure is cast in serious doubt.  Dire demographic forecasts have been made about China. The European Union may turn to promoting immigration in order to escape the trap of an ageing population and ballooning public debt.  The US hardly needs to promote immigration.  What policy makers need to do is facilitate immigration.

The work of economist Giovanni Perri would be a great first stop for legislators worried either about Malthus or reelection. In his recent policy paper Dr. Perri proposes a market-based regime for employment visas.  This would replace the first-come, first-served and lottery systems now being used.  By allowing employers to bid on employment visas, market efficiencies would distribute these scarce resources to most interested employers.  This is only the first step in what Dr. Perri sets out as a three phase plan for comprehensive immigration reform.

Phase one includes an auction for temporary employment visas, like the H-1B and H-2.  This visa auction places employers at the center of the decision-making process while reducing transaction costs such as legal fees.  A minimum price could be set by the government to cover the costs of the auction and the tracking database, which Dr. Perri estimates could easily be set at $7,000 for the three-year H-1B.  Immigrants coming to the US on these visas would not be tied to any particular employer and could circulate freely in the labor market as employers barter for immigrants and their visas on a secondary market.  By treating these employees as normal members of the labor pool, employment visas would no longer need to be encumbered by the byzantine labor verification system.  This process requires employers to prove that a position filled by an immigrant employee cannot be filled by a native worker and is a long, drawn-out bureaucratic exercise.

Phase two calls for the simplification of visa categories.  The current system for employment visas involves a wide array of visas (H, I, L, Q, R and TN) that are valid for differing periods of time.  

The second phase of this comprehensive reform plan calls for collapsing all of these categories into three simple classes: C, NC and S.  These new groups would be aimed at college educated work, non-college educated work and seasonal work respectively.  The first two new visas would be valid for five years while the last would be valid for twelve months.  This visa revamp would also abolish the distinction between “temporary” and “permanent” visas.  All visas would be considered provisional with the option of applying for permanence at their expiration.  Dr. Perri argues that this incentivizes rational self-selection among immigrants to decide if they wish to save and return to their countries of origin or if they wish to remain in the US.  The ability to seamlessly incorporate immigrant workers with five years or more of experience into the labor market as legal permanent residents would be a boon for employers, workers and the economy as a whole.

The third phase proposes expanding the provisions of the first two phases to the wider immigration regime.  Thus a new balance should be struck between family- and employment-based visas.  Adult children and siblings of US citizens should be diverted into the employment visa system.  National quotas should be eliminated and provisional visas should be granted to graduates of four-year universities in the US.  Along with these expansions, the current undocumented population should be folded into the system through a regimented process towards residence.

Dr. Perri offers convincing arguments and sufficient detail for a well-balanced debate over the merits of his proposals.  As an economist, his affinity for hard numbers and modeling lends itself to a tone of reasonableness that has long been absent in the immigration reform debate.  The political pitfalls of pushing through this type of reform may still be daunting, but the demographic and economic impetus for the changes outlined in this plan will only drive the need for its serious consideration.  Anyone looking for some content to insert into their comprehensive immigration reform package should certainly consult with Dr. Perri.