Why Separate Legal, Illegal Immigrants?

Peter Skerry
Peter Skerry Former Brookings Expert, Professor of Political Science - Boston College

August 4, 1996

The latest proposed “solution” to America’s continuing immigration dilemma was recently announced in Sacramento. The California Lawful Employment and Residency (CLEAR) initiative, supported by many of the same activists who got Proposition 187 passed, would make it a crime to rent or sell property to illegal immigrants. Whether or not this measure qualifies to be on the ballot, it stands as another example of the misguided policies and shallow, opportunistic thinking coming from all parties in the current debate over immigration.

Like the proposal to ban illegal immigrant children from attending public schools, originally a provision of Proposition 187 and now included in immigration legislation pending in Congress, the CLEAR initiative assumes a sharp distinction between illegal and legal immigrants that simply does not exist. Yet, the idea that illegal and legal immigration are distinct phenomena that can and should be addressed separately reflects a consensus that, ironically, even pro-immigration advocates have bought into. The almost certain result will be harsh and punitive policies that take all the easy shots at illegal immigrants and will prove ineffective precisely because we are avoiding the tough measures necessary to deal with a world in motion at the end of the millennium.

As has already been shown, the public-school ban incorporated in Proposition 187 and current congressional legislation would have to be enforced by unwilling teachers and administrators. It is preposterous to think that landlords would be any more willing to enforce CLEAR’s mandates.

Yet, even if educators or landlords were willing to carry out such policies, it is not at all clear how they would do so. For as we have learned from the current law sanctioning employers who hire illegals, there is no reliable way to distinguish illegal from legal immigrants. Indeed, the means of identification—a more secure Social Security card, for example—necessary to do so is a step that alarms Americans of many different political perspectives.

But even if we had the means of reliably distinguishing illegal from legal immigrants, it would still be no simple matter. For, at this point, we would collide with the false assumption that illegals are a distinct and separate population existing apart from legal immigrants and from the rest of American society.

More than two decades of research has revealed that illegal immigrants come to America for the same reasons and by means of the same network of friends and families as legal immigrants. As the Immigration and Naturalization Service has estimated (no one knows for sure), about 50% of illegal immigrants originally arrived here as legal immigrants—and simply overstayed their visas. Not surprisingly, then, illegals live with and among legal immigrants—and U.S. citizens. A federally sponsored study of illegals who chose amnesty under the 1986 immigration reform law found that such an immigrant typically lives in a household that not only includes other illegals, but legal permanent residents and U.S. citizens. Such residential patterns highlight the complexities of targeting illegals, which forced the INS to stop sweeps of immigrant neighborhoods.

These numbers also suggest why poll after poll reveals that the American people do not typically draw clear distinctions between illegal and legal immigrants. However unfortunate from a civil-liberties point of view, this perspective is hardly irrational. Illegals are part of the warp and wool of American society. What’s irrational is the current emphasis in Washington and in Sacramento on drawing bright lines between legal and illegal immigrants—particularly with the tools presently at our disposal.

But if such proposals are so unworkable, why are they the focus of the current debate? First, the deceptively simple distinction between illegal and legal immigrants allows us to resolve, albeit in bad faith, our historic ambivalence toward all immigrants. As was evident in Congress earlier this spring, this false dichotomy allows us to attribute all the problems attendant on mass migration to illegals, and all the virtues to legals. Politicians assume, incorrectly, that attacking the former will not cost them support among the latter.

In no small measure, this mind-set has taken root because is has been embraced by immigrant advocates. The same organizations that used to denounce the term “illegal alien” and righteously insist on the bowdlerized “undocumented worker” have been so much on the defensive in the current anti-immigrant environment that they have accepted a simple-minded formula—”illegal immigrant, bad, legal good”. So even though they now opposed efforts like CLEAR, these immigrant advocates helped lay the groundwork for the false premise that these two groups can be easily differentiated and separated.

The continuing debate over such policies also allows immigrant advocates to take the high—and safe—moral ground without addressing more fundamental and difficult issues. To be sure, immigrant advocates are right to criticize CLEAR, proposals that unfairly and shamelessly target illegals. But the restrictionists pushing these simplistic ideas have themselves become easy targets for their pro-immigrant critics. The result is a largely phony debate.

Of course, the fact that the champions of immigrants abandoned illegals and thereby helped to legitimate many of these misguided proposals, explains why the rest of us have joined in the fray. For however much they may resemble their friends, neighbors and countrymen here legally, illegals are more vulnerable and at risk. And without the vote, they have limited means of holding accountable those who claim to represent their interests. In short, illegals are the weak link in the migration chain.

Accordingly, any serious immigration policy must, in the first place, strive to keep out illegals. Unfortunately, none of the proposals now circulating will accomplish this goal. Getting serious about immigration means getting serious about legal as well as illegal immigration. But insofar as we focus on illegals, our emphasis should not be on housing or schools, but on jobs that attract them. Yet, such an approach would force an examination of the complicity of U.S. employers in the immigration mess, which the current debate neatly avoids. Moreover, getting serious about workplace enforcement would lead to discussions of secure means of identification that employers could use to reliably determine who is here legally or not. Such efforts, along with serious measures at the border, are what ought to be debated—not whether landlords and teachers should be enforcing our immigration laws.

Meantime, the curious consensus against illegal immigration that has evolved in recent months threatens to intensify sentiment against illegals. Worse, the current round of proposals, if enacted into law, will have, once again, falsely raised the expectations of the American people that this difficult problem is being addressed. The history of immigration policy in the postwar era has been one of inaccurate predictions, unintended consequences and inflated expectations—and continuously rising levels of legal as well as illegal immigration. We need to be tough on illegals. But we also need to be tough on ourselves and face up to the fact that the immigration problem is much bigger and more deeply rooted than the easy targets aimed at in these hotly debated proposals.