Ask the Professor

Strangers at the fence

If you build it, they’ll still come

Professor Gerald L. Neuman

Kathleen Dooher

Gerald L. Neuman ’80 says immigration law can succeed only if it gets beyond rhetoric and hypocrisy.

With immigration bills stalled in Congress, the Bulletin asks Professor Gerald L. Neuman ’80: Why is immigration reform so difficult to accomplish? Neuman, formerly at Columbia, joined the Harvard Law faculty this summer as the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law. He is the author of “Strangers to the Constitution: Immigrants, Borders, and Fundamental Law” (Princeton University Press, 1996). His answer:

The issue of illegal immigration is often oversimplified. There is no simple solution because there are many complex aspects to the problem.

First, while stricter border enforcement could make it substantially harder for people to come unlawfully, large numbers will still come through, and many will remain for a long while.

There’s also a great deal of complexity in the labor market economics of illegal migration. Who benefits? Who is hurt? What could we be doing to compensate those who are hurt because of the benefits that illegal migration creates for others? It’s not accurate to say that every time an illegal migrant takes a job, that job is taken away from a U.S. citizen. Some jobs would not exist in the absence of illegal migrants, either because no one else would do them or because immigration affects the demand for labor as well as the supply.

There are also particular moral dimensions. Some people come fleeing for their lives and nonetheless are treated as illegals. Children who come involuntarily never made the choice. In terms of the equities, different segments of the illegal population have different strengths of claims and different calls on our sympathy.

Of course, many of the people who come illegally know that they are breaking the law. But there is also a lot of illegality in our society that makes it easy for the migrants to come here illegally. We don’t treat the illegal employers the same way we treat the illegal employees. No one in Congress is arguing for revocation of corporate charters of employers who knowingly employ illegal immigrants, or for confiscating the houses of people who hire illegal domestic workers or who employ landscaping services knowing their workers are illegal.

Any program for offering the opportunity for legalization to some illegal immigrants would have to contemplate that migrants offer a variety of claims or grounds for eventual admission to citizenship, and yet any program or criteria we choose could be workable only by employing some arbitrary line-drawing of the sort required by mass adjudication. We have hard choices to make about who will be given a path to citizenship. And, even if we make those reductive choices—say, people who have been here three years are given a path to legalization, but people here fewer than three years are not—we will require proof of facts from people who, until now, have had every incentive not to keep documentation of those facts.

We have other hard choices to make. Should citizens carry national identity cards? Should employers and others have access to databases that contain private information about people? Are we willing to take the risk of U.S. citizens not being able to get jobs because of flaws in computer systems for verification of status? Any system of population control involves trade-offs between civil liberties and other values. These are hard choices that simplified rhetoric doesn’t answer.


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