Immigration: The Federal Solution

The conflict over immigration has become something close to a civil war, with the federal government blocking state action against federal agents arguably guilty of murder. The immediate source of the conflict is a sharp difference in attitudes to illegal immigration between the inhabitants of Minneapolis, possibly of Minnesota, and the executive arm of the federal government. The less immediate source is a broader political split between left and right, blue tribe and red tribe.

The accepted way to deal with that situation is through the electoral system. If red tribe control of the federal government offends enough people the Republicans lose control of Congress this year, of the White House two years later. If the resulting blue tribe control offends enough, the system lurches back. With the electorate as evenly divided as it now is, a shift by a few percent of the electorate is enough to do it. The nearest thing to a stable solution is divided government, Congress controlled by one party, the presidency by the other, neither able to do much on any issue where they sharply disagree. Democratic congressmen have threatened to block funding for DHS if ICE is not reined in — if they take control of Congress in the midterms they can do it.

A better solution is federalism. For the current conflict, that means deporting illegal immigrants from Florida, where the state government supports doing so, ignoring them in Minnesota and California, where the state government and, I suspect, a substantial majority of the population, do not. If illegal immigrants are mostly criminals and welfare scammers, as one side’s rhetoric implies, the blue states will bear most, although not all, of the cost. If they are mostly hard working and, immigration law aside, law abiding, blue states will prosper.

It is not a perfect solution. The US has open borders between states; an illegal immigrant tolerated in Minnesota can winter in Florida and commit crimes there. But if state and federal authorities are actively hunting down illegal immigrants in Florida and deporting them he mostly won’t — California has warm winters too. Some of the costs that illegals impose are for things the federal government pays for but most welfare and most of schooling are funded at the state and local level.

Having the federal government tolerate violations of federal law in states where the law is sufficiently unpopular sounds like a radical solution to the problem but it is in fact how we deal with another issue on which people have long been divided: Marijuana. Possession and sale of marijuana are illegal under federal law — growing a single marijuana plant is an offense that, in theory, can be punished by up to five years in prison. They are legal, with various restrictions, under state law in many states. Almost all of the enforcement apparatus is state and local law enforcement, so in practice the federal law is mostly unenforced in states where the state and local governments do not want to enforce it. The federal government could, in principle, take the same approach to that issue that it is taking to immigration law, create an enforcement apparatus large and powerful enough to go into states where violation of federal marijuana law is widely tolerated, and enforce it.

What is actually happening is the opposite; think of it as a demonstration of the laboratories of democracy model of federalism. The widespread toleration of marijuana use at the state level did not lead to the catastrophes of crime, addiction, or dangerous driving that the supporters of drug prohibition predicted. While some people believe that de facto legalization was a mistake almost nobody believes that it was as bad a mistake as many people once claimed. Marijuana is in the process of being reclassified from the most serious to the least serious class of illegal drugs, and no serious effort is being made to enforce the federal laws against possession, use, or small scale production.

There is no legal bar to prevent the same approach to immigration law. Shocking as it may seem, there is no legal requirement that law enforcers actually enforce a law. The application of that to the immigration context was demonstrated by Obama’s policy with regard to “dreamers,” illegal immigrants who had come into the US before age 16, resided for at least five years, and met a variety of other requirements. He was unable to get DACA, the act implementing the policy, through Congress, instead instructed the federal immigration authorities to act as if it had been passed, so they did. There is no legal bar preventing Trump, or his successor, from instructing DHS to only enforce immigration law at the border and in states where the state government supports its enforcement. The only bar is political, the fact that immigration has become an issue linked to a broader political division.

If the federal government did apply that approach we would get evidence, as we did in the marijuana case, of the effects of enforcing or not enforcing the law. It is not a perfect controlled experiment, but if crime rates went down in states where illegal immigrants were subject to arrest and deportation and up in states where they were not, or if they didn’t, we would have something better than partisan rhetoric or studies done by people who knew what conclusion they wanted to reach.

We might end up with a compromise acceptable to most, if not all. Enforcement at the border to sharply reduce illegal immigration, deportation of existing illegals from states that wanted them deported, toleration in states that didn’t. States that tolerated illegal immigrants could still turn over to the federal authorities any convicted of serious crimes, saving the state the cost of imprisoning them.

The Problem of Unenforced Laws

One of the things that makes the current conflict as fierce as it has become is that, for a very long time, immigration law was largely unenforced save at the border. Once someone got in, legally with a visa or illegally, continued illegal residence was mostly tolerated. The result is that there are millions of people in America living ordinary American lives who have no legal right to be here. They have built their lives, as most people do, on the law as they observed it being enforced, not on the law as it was written down. That is no more shocking than the fact that, on any random day, millions of Americans break the law by driving a little faster than the speed limit or possessing marijuana in violation of federal law. But the result of that situation, which the supporters of the current efforts to enforce immigration law do their best to obscure, is that ordinary American families with jobs and children and homes are being arrested, imprisoned, and deported, because, legally speaking, they are not Americans.

Imagine that the federal government started enforcing its marijuana laws. The statute of limitations for possession of a controlled substance is five years. The penalty, for a first conviction, is a year in prison. In 2022, an estimated 62 million people smoked marijuana; all of them, and many more who smoked it before or after, could be charged, with adequate evidence convicted, and jailed. Anyone who sold marijuana, which many did openly, is subject to a penalty of five years. The penalties if we enforced traffic laws as written are less severe but many more people, most adults, would be subject to them.

The equivalent is being done with immigration law in Minnesota, which is part of the reason for the strength of the opposition. Also a reason why, if laws are not being enforced, it might be prudent to repeal them.

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