Oklahoma: Immigration Policy in Ok: The tension between liberty and law

Sun Mar 23 14:11:06 UTC 2008

Immigration Policy in Ok: The tension between liberty and law

By Patrick B. McGuigan
Saturday, 22 March 2008

Immigration, not Social Security, is suddenly the third rail of
American politics. Most everyone seems to agree it's a major problem
of law and culture. There's a widely held belief that the federal
government over the past two decades failed us all by losing control
of our national borders and ignoring illegal immigrants among us. One
day we woke up with somewhere between 15 and 20 million illegal aliens
domiciled in the United States. In the midst of very reasonable
concerns about security in the age of suitcase bombs, the race was on
to "do something" about the immigration problem. That desire to "do
something" is understandable. After all, we are a nation of laws. Many
who are less than comfortable with Oklahoma's new immigration law
nonetheless support making English the official language of the
country, as a way to bind a fractious modern society to a common
language and means of discourse.

A conservative believes in the rule of law, and respects the function
of law even if one disagrees with particular laws. But it is also a
conservative value to recognize the limits, in this and every era, of
government action.  As is often the case with government action,
"doing something" can create problems of its own. In employment
markets, the mindset behind Oklahoma's new immigration law, House Bill
1804 (which went into effect on Nov. 1), presents a conflict of
fundamental values. You have willing buyers and willing sellers who
are being told they can't do business together, even if few domestic
workers are available.  The labor market shock from the new law has
been rapid, and will be dramatized this spring, summer, and fall when
Oklahoma farmers have trouble getting crops harvested. There are labor
shortages in some parts of the state economy, construction delays, and
a new reputation for Oklahoma -- traditionally one of the nation's
friendliest places -- as one of the least-welcoming American states.

Traditional allies find themselves estranged, as the State Chamber
seeks to reverse the anti-business impacts of the new law, which
sponsors brag is "the toughest immigration law in the country."
Business leaders say the Oklahoma law and a similar measure in Arizona
put impossible burdens of enforcement on businesses, and pre-empt an
issue that is reserved to the federal government.
Decades of misguided laissez-faire attitudes brought us to a crisis of
confidence that preceded this bill, and to this pass. It may take us
awhile to work our way out of it, as gridlock continues in Washington.
An argument often made against more restrained steps on immigration is
that the new provisions making immigration enforcement a state concern
are overwhelmingly popular with Oklahomans. For that reason, there is
great political fear of saying or doing anything that would ameliorate
the effects of HB 1804.

The political power of the issue may be overstated. While some polls
once put immigration high on the list of salient voter concerns, it
has been trumped by the economy and other concerns in recent months.
Moreover, the results of the presidential election cycle are giving
us, as nominees, arguably the two most "moderate" public figures in
the politics of immigration. But even if the issue has great potency,
if the new state law is harmful to otherwise law-abiding people, bad
for the economy, and bad for business, it would seem wise to revisit
it.

Toward a New 'Oklahoma Standard'

In a column last month, Paul Weyrich of the Free Congress Foundation
had some good words for a new Bush administration effort to put teeth
in the visa program for farm workers. The U.S. Department of Labor
estimates about 75,000 foreign workers participated in the H-2A visa
program last year, while roughly 10 times as many undocumented
laborers worked illegally on U.S. farms.

Bush's new rules would require employers to make application for
workers with the U.S. Department of Labor, eliminating state agencies
from the picture. Farmers seeking employees would have to spend 75
days (a month longer than presently) recruiting U.S. workers before
jobs could be legally filled with foreigners. The new system would use
data from the Bureau of Labor Statistics (BLS) Occupational Employment
Survey to calculate minimum wages for this and other visa programs.
After another month of comments, the new system could go into effect
this spring.

Weyrich is not sure if the program will produce dramatic change, but
believes it could make the system more honest. And, as he says, "all
visas should be run through the federal government, not through
individual states, because immigration belongs to the jurisdiction of
Congress and the executive branch."

The new program will pressure wage rates upward somewhat, and might
attract more citizens and legally resident workers into the
agricultural labor market. That could reduce the demand for illegal
workers, but it won't eliminate that demand. The new Bush rules bear
watching.

If nothing else, the new U.S. Department of Labor rules build on a
hallowed tradition in American immigration law, essentially requiring
that new arrivals have sponsors who will assure they do not become a
burden on social services. This is not a dated or unachievable
idealistic policy; as recently as the 1970s and 1980s the Catholic
community and others sponsored thousands of refugees from Vietnam who
have become pillars of the vibrant economy in midtown Oklahoma City.

One problem with the current policy impasse is profoundly human. No
one realistically expects our government to deport 18 to 20 million
people, most of whom are workers, church-goers, and otherwise
law-abiding people. The questions become what to do about those
already here, and what to do from now on.

Here and there one can discern hints of possible paths toward
enforceable policies. A national poll conducted last fall found that a
strong majority of Americans do not think the southern border can be
controlled without a new temporary worker program. The study of 800
likely voters was conducted in November by Public Opinion Strategies
for the Vernon K. Krieble Foundation.

The Krieble poll put legs on a policy proposal to separate citizenship
and permanent residency, crucial concerns of the federal government,
from non-immigrant visas. Private employment agencies could match
workers and jobs, run background checks, issue "smart cards," and
monitor workers as they move through the process.

The Krieble survey found that 76 percent of those surveyed agreed with
the statement, "It is not possible to have absolute border control
without a better system for handling temporary workers." Asked about
efforts to strengthen border control, 53 percent believed this could
best be achieved by "creating a more efficient system for handling
temporary workers," while 36 percent chose the option of "increasing
the presence of law enforcement officials."

Krieble's idea assumes a private program could be sufficiently just
and transparent to answer the demands of citizens for an honest
program that promotes respect for the law. The only way to find out if
that's right is to try it.

Shane Jett, the only Republican state representative who did not
support HB 1804 last year, has a proposal to establish a worker
program that would require registration of "guest" workers, who would
have to pay what he calls "a meaningful fee/fine," require purchase of
automobile insurance, and require that they pay the same taxes as
other Oklahomans.

The workers' license would have to be renewed annually. In return for
registering, the workers would get some state-level protections from
federal enforcement actions.

A possible weakness of Jett's proposal is that it would build on the
fundamental flaw of HB 1804: assuming that a federal issue can and
should be made a state issue. Conversely, like 1804, it builds on the
assumption if that if the feds won't act, we should.

The American experience with prohibition of alcohol might be an apt
historical metaphor for the current tension and federal gridlock over
immigration. Millions on both sides of that debate felt very strongly
in the rightness of their position. Some argued for the social
necessity of a ban on alcoholic spirits; others wanted to "live and
let live."

After passage of the Prohibition Amendment, millions continued to live
as they chose, making their choices in a restricted environment. The
attempt to impose Prohibition fueled an erosion of respect for law,
created a huge black market of goods, and ultimately collapsed. Only
after a decade of policy failure was Prohibition repealed, by the same
people who had implemented it.

Immigration is that kind of an issue. Like the Irish and the Chinese
before them, a new group of immigrants, legal and illegal, are bearing
the brunt of a contentious debate. Like the Irish and the Chinese, the
Mexicans, Hondurans, and Guatemalans are tough. They will survive, and
so will America.

There will be fits and starts. Ultimately, enforceable policies will
emerge that balance the tension between liberty (willing buyers and
sellers) and law (enforceable and widely understood laws and
processes).

In modern America, resolutions won't come in ways that can be captured
on 45-second evening news segments or 22 minutes of innuendo-laced
dialogue in television sitcoms. Real solutions may require years of
experimentation and developments in law.

But surely, solutions are possible that meet the needs of the market
for workers and the needs of society for an enforceable rule of law.
Let's get started and create a more positive and supportable "Oklahoma
standard."

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About the Author:
Patrick B. McGuigan is the author of two books and the editor of
seven, including "Law, Economics & Civil Justice: A Reform Agenda"
(1994) and "Crime & Punishment in Modern America" (1986). He is a
regular contributor to Tulsa Today and a research fellow at OCPA.

http://www.tulsatoday.com/newsdesk/index.php?option=com_content&task=view&id=1497&Itemid=2

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