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. 

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.

Outsourcing Migration Policy

Specialists and academics in the field of immigration often complain that human migration is a global or regional phenomenon that is usually dealt with on a national level.  The regulations and enforcement mechanisms of national immigration laws are generally considered clumsy tools for managing international migration flows.  No academic conference on modern migration passes without a discussion of the state as an appropriate or inappropriate level of analysis.  Beyond academic debate, it is becoming clear that states are increasingly sharing the responsibility for their migration policies with other actors, both state and non-state.  This reality is at odds with the popular nationalist discourses used in most countries to justify and promote immigration laws. 

One telling example has been the European Union (EU) effort to secure bilateral agreements with neighboring non-EU countries, conscripting them into enforcing EU immigration policy.  This outsourcing of immigration enforcement to North Africa has ostensibly had a negative impact on human rights and the treatment of migrants moving from Africa to the EU.  These treaties often induce under-resourced countries to implement rudimentary immigrant control schemes.  These systems foster abuse in the form of inadequate detention conditions, access to legal recourse, social benefits and healthcare among others.  For example, UN Special Rapporteur on the human rights of migrants, Prof. François Crépeau, found that bilateral cooperation between Italy and Libya was heavily geared toward curbing migration to Italy.  He found that training and funds superficially dedicated to high seas rescue were also being used to increase interdiction of EU-bound migrants.  He found that given the poor record of human rights abuses against migrants in Libya, no intercepted migrants should be returned to that country against their will.  In his visit to Turkey, Prof. Crépeau, found that the focus on securitizing the border and reducing irregular immigration came at the expense of human rights concerns.

However, this type of “migration diplomacy” conducted by European states extends well beyond bordering states.  Since 2006 for example, the Spanish government has signed agreements Mauritania, Gambia, Guinea, Senegal, Mail, Cape Verde and Niger among others.  These agreements link development and migration and tend to focus heavily combating irregular migration through readmission agreements and strengthening emigration controls in the countries of origin.  On both the EU level as well as the individual state level, Europe is externalizing its borders and outsourcing the enforcement of its migration policy.

Another formal arrangement demonstrating the outsourcing or off-shoring of international border enforcement is the Australia-Papa New Guinea “Regional Resettlement Arrangement.”  This agreement, discussed in more detail in an earlier post, essentially designates PNG as the off-shore detention facility for individuals seeking asylum in Australia.   The UNHCR has said that the agreement “raises serious, and so far unanswered, protection questions”.   The Australian government lauds the agreement as a meaningful step to reduce the flow of migrants taking to the sea to seek asylum in Australia.  A similar trend is underway in the United States with regard to the southern border, however, marked by far less coordination or formal negotiation.  Mexico has been reforming its immigration laws, revising its visa categories and attempting to control irregular transmigration to the United States as well as bolstering human rights protections for migrants.  However, the Mexican government has been carrying out raids, paralleling those in the US and EU, to apprehend irregular migrants from Central America.  Such raids, carried out along well-known routes of north-bound migration, suggest an externalization of the US-Mexico border.  At a time when net migration from Mexico to the US has reached zero, Central Americans now represent the fastest growing segment of the Latin American immigrant population in the US.  As the Mexican government seeks to pivot away from the narco-migrant dialectic of its diplomatic relationship with the US, recasting Mexico’s role as border enforcement collaborator may be a beneficial alternative.

In all of the examples given above, the principal actors have been states.  However, the outsourcing of migration policies also involves non-state actors.  One of the most important has been the airlines.  One of the principal methods of entry for irregular immigrants in developed countries is to enter legally on a visa and then overstay.  Thus, controls at ports of entry, particularly airports, are a key aspect of border enforcement for these countries.  Migration laws in migrant destination countries are converging and imposing fines on airlines who allow passengers to board who do not have proper entry documents.  For example, in the US, the Customs and Border Protection agency requires airlines to transmit passenger information for all passengers on a given flight.  Failure to comply can result in fines of $5,000 for each infraction.  Examples of non-state actors taking on roles in immigration enforcement will likely multiply as states retrench under budgetary pressures.  As long as security and fear govern migration policy in the global popular consciousness, new actors and new revenue streams will spring up.  In the meantime, states will continue to seek methods of externalizing and “outsourcing” their immigration policies.