by Peter Spiro
Columbia University's Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati's delivery last week of the 2013 Emma Lazarus Lecture, co-sponsored by Columbia Law School and its School of International and Public Affairs. I was delighted to serve as a discussant for the lecture.
Bhagwati makes two basic points in the piece: that federal policy on undocumented immigrants is inhumane in an unfixable way, and that the more promising vehicle for advancing rights is through competition among the states. We should, in other words, give up on Washington and look to state capitals by way of moving forward on immigration reform.
Count me in. As Bhagwati points out (the reflexes of many immigrant advocates notwithstanding), the federal government, even under Democrat presidents, is capable of great cruelties when it comes to the treatment of undocumented aliens. The Obama Administration has deported a record number of non-citizens, many of them for trivial crimes. The Senate's version of immigration reform includes a ridiculous increase (by almost everyone's estimation) in the border security budget. Anyone assuming that comprehensive immigration reform will be friendly to immigrant interests has history to argue against.
The states, meanwhile, will see the error of their ways in treating undocumented immigrants badly. If undocumented immigrants feel unwelcome, they will leave for more hospitable jurisdictions. That by itself will harm a state's economy -- witness the crops left rotting on the vines in Alabama after it enacted the draconian HB 56 in 2011. Greater harm results from a tarnished brand. After Arizona enacted SB 1070, it lost tens of millions of dollars in convention and tourism dollars (Mexico issued a travel advisory cautioning against travel there). It can hardly help Alabama's future efforts to attract big-ticket foreign investment after it locked up German and then Japanese auto manufacturing executives for possible violations of its law.
Hence the very real possibilities of "race to the top" federalism in the immigration context.
Even in the wake of the Supreme Court's decision last year in Arizona v. United States, which gutted SB 1070, the states have room to differentiate their treatment of undocumented aliens. States can adopt their own sanctions regimes against those who employ undocumented workers. They are free to grant or deny in-state tuition to undocumented alien college students. They can grant or deny drivers licenses to the so-called childhood arrivals insulated from deportation as a matter of Obama administration policy. They can grant or deny other state public benefits to undocumented aliens. (The most recent example: whether an undocumented immigrant is eligible to practice law.) Finally, they can adopt (or not) the kind of "papers, please" measure that the Supreme Court upheld in the Arizona case.
But this discretion is mostly at the margins. For the states to play a central role in immigration reform, they'll need more regulatory space. That will require federal activation. Devolving power to the states itself might grease the wheels to securing comprehensive immigration reform in Washington, allowing federal legislators to pass the buck downstairs. . . .