David R. Henderson  

Reply to Kurt Schlichter

PRINT
Coming soon. Another Greek ele... Will and O'Sullivan on Conques...

Pundit and trial lawyer Kurt Schlichter has written a strongly worded article telling Republican candidates for President how they should think about immigration. The tone suggests that he's not very open to changing his mind. Nevertheless, the points he makes call out for a response.

This early paragraph gives you a feel for his tone:

Some of you and the GOP Establishment (yeah, it exists) don't think illegal aliens are a problem. They are. And the people suffering aren't yahoos and rubes hatin' on them brownpeople from Mex-eeee-ko. They are fellow Americans who see their property overrun and stolen, their children murdered by gangbangers or slaughtered by drunk drivers, and their taxes raised to pay for the medical care and schooling of people who shouldn't be here in the first place.

Actually, all of the objections in the last sentence are legitimate. Some illegal immigrants have overrun and/or stolen property. Some illegal immigrants have murdered children. Some illegal immigrants have driven drunk and killed people. And some illegal immigrants do use medical care and schools that are paid for by taxpayers. Of course, it's also true that in each of these categories of actions, legal immigrants and U.S.-born citizens have done far more.

So what specifically does Schlichter object to about illegal immigrants? He lays down five principles.

He writes:

Number One: We Americans have an absolute right to decide who does and doesn't come into our country and the conditions under which they may do so.
Immigrants have no right to be here. None. They may be granted that privilege, if we choose to grant it. And we may take it away, too.

But who is "we." Does he mean the government? Does he mean U.S. citizens? He doesn't tell us. I know that, as a U.S. citizen, I've never had the power to decide who does or doesn't come to this country. We haven't even had that power collectively because we have never had a federal referendum on the issue. Also, what if I, a citizen, want an immigrant to come to this country so I can rent him an apartment or hire him to trim my tree. Mr. Schlichter seems to be saying that I should be able to have the immigrant come here. After all, as an American, I have, in his words, "an absolute right to decide." Ok. I've decided I want that guy to come. But we all know that that's not what Mr. Schlichter is saying. He's saying that the government has the right. At least I think he's saying that.

Mr. Schlichter writes:

Number Two: If you commit a crime, you get tossed out.
Break our laws and you're gone. Murder (if we don't off you), robbery, dope selling, drunk driving, jaywalking. No discussion. No second chance. Out.

I get it with murder and robbery. I also get why, although I disagree with them, many people would like immigrants kicked out for dope selling. But jaywalking? Really? That's enough to get someone turfed? And what happened to my "absolute right" as an American citizen to have the person stay here?

He writes:

Number Three: Build a real wall, across the whole damn border, and guard it.
We must stop the flood, decisively. We must build a real - not virtual - wall and staff it with sufficient border guards. We must end "catch and release." Instead, it must be "catch and dump back into wherever the hell they came from." We also eliminate the anchor baby problem if we don't let the mother ships stay in port.

And no, Mexico is not going to pay for the wall. Of all Trump's dumb ideas, that's the most insultingly stupid.


Schlichter surely knows that many of the people who are here illegally came here legally. So a wall would do little to stop them. He and I do agree though that Mexico, by which I assume he and Trump mean the Mexican government, is never going to pay for a wall.

Trial lawyer Schlichter writes:

Number Four: Send illegals home by enforcing hiring practices through civil law.
Let's unleash the power of trial lawyers by granting individual American citizens the right to sue employers who hire illegal aliens under a federal unfair competition law. A lot of people rightly worry about a government police state intruding into private business. So let's grant our workers the right to sue employers who hire illegals for damages for displacing American citizens from American jobs, and let the attorneys do their thing. And when the illegal aliens' jobs dry up - because they will overnight - then the illegals will...wait for it...self-deport. Finally, a way to use lawyers for good instead of evil.

I didn't know that trail lawyers were "leashed." That would come as a surprise to many firms in the United States. And setting trial lawyers on employers would not just reduce jobs for illegal aliens. It would also reduce jobs for Americans. Trial lawyers could easily shake down employers who would rather pay, say, $20K or $30K than have to prove that they hired legally. Knowing this, they would be less likely to be employers.

He writes:

Number Five: No pathway to citizenship. Ever.
See, the minimum expectation for an aspiring American citizen is respect for our laws, which an illegal, by definition, does not have. So, no illegal has met the minimum expectation, and none should ever be a citizen. I suppose this serves our interests as conservatives too, since most illegals seem to want to vote for the Democrats and their pro-"Let's give free stuff to people who didn't earn it" agenda. So what? I am unclear about the origin of any moral obligation on our part to dilute our voting power by enfranchising political opponents who shouldn't be here in the first place.

He seems to assume that people who are working illegally all know that they are doing so. That's probably true for most people here illegally. But it wasn't true of me. I worked at the University of Rochester on an F-1 Practical Training student visa and then, when I earned my Ph.D., applied for my green card. The Labor Department did not certify me until 2 months after my practical training visa expired. I learned that the hard way at my immigration interview, when the Immigration and Naturalization Service official told me that my interview was officially over and that the INS was legally required to undertake deportation proceedings. By Schlichter's standards, I would never have been allowed to become a citizen.

However, I would bet that the vast majority of immigrants would have the view I had: that they would gladly give up the possibility of citizenship in order to live and work here legally. In any case, I think it's reasonable to have, say, a 20-year residency requirement for citizenship so that people can learn more about the country before being able to vote. I must admit that my biggest disappointment in becoming a citizen is being able to vote. I've voted in almost every election since I became a citizen in 1986--and it hasn't made a difference yet. It turns out that what I teach my students about the unimportance of a single vote is--true.

HT to Instapundit.


Comments and Sharing






COMMENTS (16 to date)
James Hartwick writes:
Some illegal immigrants have.... Of course, it's also true that in each of these categories of actions, legal immigrants and U.S.-born citizens have done far more.
Pointing out that US citizens have done far more is a red herring. We shouldn't have to deal with additional crimes committed by illegal immigrants just because we already have to deal with crimes committed by citizens.
I know that, as a U.S. citizen, I've never had the power to decide who does or doesn't come to this country.
I half agree with this sentiment, although it's ultimately also a red herring. This statement (and other similar ones later) are a red herring because they ignore the fact that we live in a representative republic, where we individually as citizens don't pass the laws -- our representatives do. So this statement can be viewed as a complaint against representative democracy as opposed to direct democracy, but that's not the issue at hand. Hence, red herring.

However, I agree with this sentiment in the sense that I feel like the floodgates for both legal and illegal immigration were opened (in the 1990s, so after both Henderson and my parents arrived) without anyone being told. (Here's a graph.) This kind of a change in policy should have been all over the news, and discussed thoroughly in public, and I don't remember it being so. So in that sense, I agree with Henderson: When did these immigration policies get decided and why didn't I get a chance to say anything about it?

Trial lawyers could easily shake down employers who would rather pay, say, $20K or $30K than have to prove that they hired legally.
Really? How hard is it to prove that people were hired legally? Every time I've gotten hired, I've had to show proof of eligibility to work. I assume my employers still had all those documents on file. (Also, there would be a possibility that employers would simply pass on the burden to their employees. "Yes, I know you've been working here for seven years. But if you want to keep your job, you'll bring a valid birth certificate in tomorrow.")
John Thacker writes:

Given his comments about the "absolute right" of Americans to decide these things, I believe that he might think that the American government can exile people and strip them of their citizenship. Perhaps he does favor telling poor American citizens on welfare that they can't bring children into this world, or if they do, then they won't be citizens.

Very little about his argument as written seems restricted to illegal immigrants, or even legal immigrants in general.

John Thacker writes:

My wife's sister had a problem where her employer did not fill out H-1B paperwork correctly, and so as a result she was (unbeknownst to her) overstaying a visa. She had to leave the country, and has lived in Vancouver ever since. It was several years until she was legally allowed to re-enter the US at all, even on a tourist visa.

It's not an uncommon occurrence at all, and there's clearly no malice behind it. Supporting permanent exile for such a thing seems similar to supporting the most putative IRS penalties for innocent mistakes.

ThomasH writes:

"Thinking about immigration" is about the only good advice Schlichter has for candidates.

The wall might be a good way to stop the smuggling of guns into Mexico, but decriminalizing "drug" use and commerce would do a lot more good. But thinking about drug policy would be too much to ask at the same time. :)

Sieben writes:

Egh, Kurt's inconsistencies and hyperbole aside, there is really only one issue here. It is the same issue that is at the root of almost all disagreements between statists and libertarians: the presumed legitimacy of the U.S. government's claim to jurisdiction over an arbitrary piece of geography.

Of course this train of thought leads towards anarchist ethics.

Chris writes:

@James -

Really? How hard is it to prove that people were hired legally? Every time I've gotten hired, I've had to show proof of eligibility to work. I assume my employers still had all those documents on file. (Also, there would be a possibility that employers would simply pass on the burden to their employees. "Yes, I know you've been working here for seven years. But if you want to keep your job, you'll bring a valid birth certificate in tomorrow.")

It's actually illegal for employers to keep copies of these documents on file (if by documents you mean things like a photocopy of a birth certificate or SS card), though many do. The only requirement of employers is that they inspect the documents and confirm on the I-9 form that the documents "appear" valid.

There is a thriving market in selling authentic looking birth certificates and SS cards. This is largely what the e-verify program was supposed to stop, though it isn't required in most states (and has serious civil liberties issues, imo).

JK Brown writes:

First off, those who overstay their visa are not the same as individuals who illegally cross the border. People permitted to enter the US, and most countries, legally undergo an adjudication of some level, cursory for tourists and more in-depth for resident aliens. Those crossing the border illegally undergo no examination.

Example, I've seen US government-employee, US citizens refused entry into Canada as member crew for a US ship making a port call at a Canadian port. I don't remember if Canada was unhappy over US immigration policy or some fisheries dispute, but the best that could be negotiated was restriction to the ship but that avoided deportation which would have required finding and sending a replacement over a weekend.

So those permitted in a country are filtered for the worst elements. Those sneaking in are not so more of the rapists, murderers and drug felons are in this group.

So trying to equate visa violations with illegal border crossing is comparing apples with a lot of rotten apples.

JK Brown writes:
John Thacker writes: Given his comments about the "absolute right" of Americans to decide these things, I believe that he might think that the American government can exile people and strip them of their citizenship. Perhaps he does favor telling poor American citizens on welfare that they can't bring children into this world, or if they do, then they won't be citizens.

Yeah, you might be right...except for that pesky Constitution. You know the one that puts certain things beyond the executive, beyond the representative legislature and beyond public referendum. Funny thing about that Constitution, it doesn't apply to non-US citizens outside the US, nor guarantee the right of a non-US citizen to enter, reside, work, remain, etc. in the US.

And yes, American citizens have the "absolute right" to decide these things, via the representative government established by the Constitutions. And they have a right to work to change those representatives if they don't do what the American citizens want in regards to immigration.

However, even if this were a direct democracy, one is still constrained by the plurality and often may feel impotent in being able to impose their desires. Which brings up the often foolishness of secure borders type harassing illegal immigrants when government policy permits open borders. If upset by the flood of illegal immigrants then the proper focus of any abuse should be the open borders advocates since it is their plurality which elects the representatives who refuse to control the borders.

Robert Schadler writes:

I expected far more from the intelligent libertarian economist that David Henderson is. Perhaps his personal experience as an immigrant that was, briefly and innocently, violating immigration law colored his thinking. More likely, as another commentator also suggested, it was that libertarians have still not yet figured out how to deal with the geographical nation-state. Preferring another system is fine, but practical policy proposals need to be in the real world.
That is: one can imagine a world in which some 7 billion people all can make individual choices as often as they wish on where they want to live. Henderson seems to vaguely advocate something in this direction. Schlichter, even with some exaggerated language, is dealing with the world as it is. The U.S. government (through demographics, diplomacy and military force, has established borders. They are recognized by other governments and most everyone.
That then means that the US govt, through laws passed by democratically elected legislatures, have given preferences to some people over others as to who (and how many) can enter the U.S. And which seems the case with every other nation-state.
Henderson mostly avoids engaging in just what criteria he thinks should be applied, contributing very little to a debate the American nation should be having. If he thinks murderers should be forbidden from entry into the U.S., how does he propose doing this -- except to review the record of everyone that tries to enter the U.S.
It seems perfectly reasonable to view those who overstay a visa (i.e. those who have been granted permission to enter, but only for a specified period of time) should be judged differently than those who were never granted any permission to enter (including those with a violent criminal record).
As a child of immigrants myself, I favor a very generous overall policy with regard to immigration -- but also a rather robust review of each individual who wants to enter. Pushing back against over the top rhetoric and poorly considered policy prescriptions is a first step. Something practical, even if general, should then be provided -- other than agreeing that illegal immigrants that commit murder should be expelled. (Does he really think that each individual American should decide if an illegal immigrant has committed murder -- or does even he rely on the governmental legal system to make these determinations?)

Andy Hallman writes:

Thanks for doing this, David, but it strikes me as a waste of time to rebut someone who does not care about making careful arguments in the first place.

For instance, does the majority have the absolute right to do whatever it wants, because it collectively owns the country? If 51 percent of the population want to deport me for thought crimes, don't they have the right to do that?

Unless Schlichter answers this kind of questions, questions about the limits of coercion, we don't need to take him seriously.

Andy Hallman writes:

@James Hartwick

"Pointing out that US citizens have done far more is a red herring. We shouldn't have to deal with additional crimes committed by illegal immigrants just because we already have to deal with crimes committed by citizens."

I have a plan to deport all registered Republicans. Dealing with crimes by registered Democrats is bad enough, we don't need Republicans contributing any more crimes.

James Hartwick writes:

@ Andy Hallman

I have a plan to deport all registered Republicans. Dealing with crimes by registered Democrats is bad enough, we don't need Republicans contributing any more crimes.

The distinction between Republicans and Democrats is not equivalent to the distinction between citizens and illegal immigrants, when the context is the question of immigration.

James Hartwick writes:

@ Chris

It's actually illegal for employers to keep copies of these documents on file (if by documents you mean things like a photocopy of a birth certificate or SS card), though many do. The only requirement of employers is that they inspect the documents and confirm on the I-9 form that the documents "appear" valid.
Thanks, I didn't know this. I still think that the shakedown scenario mooted by Henderson is unlikely, but apparently the solution isn't as trivially easy as I thought it was.

Interestingly, the requirement to not keep copies of documents gives employers an out: If one of their employees turns out to be illegal, they can say "Well, the documents he showed me years ago were very convincing and didn't look at all fake, so you can't blame me. I would show you those documents so you could see for yourself, but of course by law I can't keep copies...."

Mark V Anderson writes:
@ Chris

It's actually illegal for employers to keep copies of these documents on file (if by documents you mean things like a photocopy of a birth certificate or SS card), though many do. The only requirement of employers is that they inspect the documents and confirm on the I-9 form that the documents "appear" valid.

There is some kind of disconnect here. I have been a contract worker for the last ten years and so have been hired maybe a dozen times over that period. Every single one of my employers have taken copies of my employment documents for their files. This would be passport, drivers lic., and/or birth certificate. I find it unlikely that all these employers are breaking the law, considering how lawyers have taken over HR departments these days. Unless the law Chris mentions is very recently enacted.

Les Baker writes:

The comment assumes that only citizens have a right to vote in American elections. That may not hold strictly true: although a federal statute makes it illegal for aliens to vote in federal elections, it appears that states traditionally exercised the power, and may still retain that power, to permit aliens to vote in state and municipal elections. So, aliens may have a right to vote in state and municipal elections if the state where they live says so.

Now, if a state permits aliens to vote in state and municipal election on voting day, how, as a practical matter, can the the feds enforce their federal rule prohibiting that same alien from casting votes in the federal elections when the voting is being conducted at the same time, in the same polling place, with the federal and state ballots being presented on the same machine, or the same piece of paper? (This is not to suggest the the current feds would ever from any intention to enforce such a rule.)

Yaakov writes:

As to voting, I calculated that in Israel, the chances that your vote will make a difference are smaller than the chances that your vote will be incorrectly listed in the official results as going to a party you did not vote for.

Of course, in the rare case in which your vote does make a difference on the final results, someone will be sufficiently interested in the results to remove the mistakes. Otherwise nobody cares.

Comments for this entry have been closed
Return to top