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Joseph Carens’s argument for amnesty for irregular migrants builds on his longstanding and important contention that liberal democracies are required by their own principles to provide broad opportunities for immigration and citizenship. Here he suggests that such societies should establish rules that automatically confer legal residency and access to citizenship on those who have lived within their boundaries for a substantial period of time—perhaps five to seven years. In general I agree with Carens’s moral views and with this specific recommendation. Indeed, even when Peter H. Schuck and I made the controversial argument in 1985 that the Fourteenth Amendment should not be read to confer birthright citizenship on children of undocumented aliens, we recognized that “those who have been born and grown up within the United States often become in fact part of the actual, organic community that is produced by shared experiences,” creating a strong moral case for their civic inclusion.
Nonetheless, I think it wiser in the United States today to propose that legal residency with rights to pursue naturalization be conferred when undocumented immigrants can show that they have resided for ten years in the country and that they have engaged in no criminal conduct unrelated to their efforts to achieve and maintain presence in the country (as Carens also suggests). My preference for ten years does not rest on any notion that a longer wait is more morally appropriate. I am interested in breaking the destructive gridlock on immigration in American politics and policy-making today, and I suspect a more conservative proposal has a better chance of succeeding.
The recent presidential campaign exposed the severity of the gridlock. At its outset many commentators felt that popular anger over undocumented or illegal immigrants, on one hand, and counter-mobilizations on behalf of immigrant rights by advocacy groups on the other, would make immigration a battleground issue last fall. Many also anticipated that John McCain’s moderation on immigration policies would mean that he could not win the Republican nomination. He was nominated, but only after he back-pedaled on his support for relatively generous components of comprehensive immigration reform, then discussed immigration as little as possible. Barack Obama, who as a state senator had favored giving driver’s licenses to undocumented aliens, also chose not to feature any positions on immigration in his campaign.
There is no winning position on immigration in American politics today. Social conservatives and some native workers of all demographics passionately oppose what they see as a rising tide of lawless newcomers who take American jobs or turn to crime and end up on American welfare and hospital rolls or in prison. Their leaders remember that efforts at comprehensive immigration reform in the 1980s provided citizenship for many undocumented aliens without stanching their inflow, so anti-immigrationists bitterly denounce amnesty proposals like the one that Carens advances.
At the same time, many employers and free-market conservatives continue to champion immigration, joined by a coalition of strange bedfellows: unions that seek to organize immigrant workers, civil rights groups, and immigrant advocacy organizations. With employers in their ranks, pro-immigrant forces are strong enough to prevent the federal government from adopting any really effective restrictions (if indeed any are possible). Public opinion among those not in any of these categories is generally anti-immigration—strengthening the hands of restrictionists—but most voters do not cast their ballots on the basis of immigration issues.
American policy-makers—conservative and liberal—are thus stymied by the roughly equal lobbying power on each side and by an electorate that is not pressing for action. And through inaction, U.S. policy-makers perpetuate a status quo that permits undocumented aliens to come, with difficulty, so that they stay longer than ever before. Thus the population of persons without legal rights to stay, a population whose status is seen as severely problematic by the left, right, and center, continues to grow.
What to do? As Carens argues, the only morally defensible position is providing legal residency and the option of citizenship to those who have effectively become part of the American community. How to win support for doing so? No one knows. My guess, however, is that a critical mass of the American public would concede that if people have actually lived here ten years in a law-abiding, productive fashion, it is clearly inhumane to deport them. Most minimally reasonable restrictionists would also have to acknowledge that the prospect of living for ten long years in a vulnerable status is as about as great a deterrent to illegal entry as a permanent ban on access to legal residency. Most people are also likely to accept that if the United States cannot detect the presence of undocumented aliens in ten years, it will probably not do much better given more time. For all these reasons, I think a policy conferring legal residency and a route to citizenship after ten years might be more likely to break the immigration policy gridlock than would Carens’s proposal.
If such a policy could win sufficient political support, it would then serve as a precedent for its relaxation over time, providing it did not appear to be generating any major economic or social difficulties—a good bet. It would also contribute to the growth of the notably young and non-white coalition that elected Obama, most of whose members tend to be pro-immigrant. That would mean an electorate more willing to support generous immigration policies in the future.
A five-year proposal is more readily portrayed as easy amnesty, and as such it might only sharpen the polarization that now prevents action on immigration issues. Importantly, whatever we think the alternative should be, we know that the status quo is not acceptable. A more conservative step now may help Americans get moving toward a better destination.
The right of government to deport irregular migrants is not absolute. That right weakens as time passes and the migrants become members of society.
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