Laws that limit immigrant labor must be followed—and rigorously.
James Hankins proposes a guest worker program that would address a half-century of shortcomings in American mass immigration policy. In its rare combination of hardheadedness and empathy, his argument calls to mind Victor Davis Hanson’s 2003 memoir/essay Mexifornia. Hankins is writing neither for economists nor for international lawyers, but for people who actually live in America and wish to do right by their neighbors, including the most recently arrived among them. This is going to be difficult.
We should be clear what Hankins means by “guest worker.” Aren’t illegal immigrants guest workers already? They are guests, after a fashion, and they do work. The expression “guest worker” means something different. Though the specifics can vary from country to country, the term means someone who is in the country where he works on sufferance. A guest worker has the right to work, but not necessarily the right to stay or become a citizen. Guest worker is an intermediate category between citizen and foreigner.
Hankins argues that elaborating such a special status for people would fix a few aspects of the present system that are especially unfair and perverse. By definition, illegal migrants do not belong here legally, but after long residence they may well belong here, and only here, culturally. What is more, their American-born children belong here unambiguously.
The present system produces grievances on all sides. Illegal migrants, Hankins correctly notes, “jump the line” in front of other would-be foreign workers, certainly damaging the interests of other native and foreign workers, and possibly the interests of the American economy. Their position of illegality leaves them vulnerable to exploitation by their employers and, in fact, by any American they encounter.
Many are not so much hired as indentured. Their illegality traps them in their jobs. It also traps them in the country, and may actually add to the immigrant presence here, by turning what would naturally be a back-and-forth migration into a one-way flow. But the worst thing, as Hankins senses, is the moral sociology of the illegal immigrant economy. It’s a world in which every transaction involves a display of dishonesty and hypocrisy on both sides. What a civic education to give our newest citizens!
Hankins’s proposition is that giving legal definition to the status of these irregular newcomers—including the right to change jobs and to travel—will solve a lot of our worst immigration problems. He is 100% right.
But there are two problems in getting there.
First is the 14th Amendment, a digest of 19th-century humanitarianisms that has become the bedrock of 21st-century utopianisms. That amendment famously guarantees equal citizenship. But it also guarantees equal protection of the laws to “persons,” whatever their citizenship status. One fears that some of the hard bargains Hankins envisions for a guest worker bill—from a categorical exclusion of guest workers from citizenship to banning guest workers from joining trade unions—would be withdrawn the moment the law made its first trip through the courtroom of a progressive judge. This has been the fate of immigration reforms in the past: the Immigration Reform and Control Act of 1986, Ronald Reagan’s great compromise, contained an amnesty that was rigorously honored and a crackdown on employers hiring non-citizens that proved utterly unenforceable under prevailing civil rights laws. Tens of millions have entered the United States illegally since.
It is true that the U.S. already has guest worker programs of a kind in certain niches, such as the H-1B visa program for tech workers. And it has had guest worker programs before in some fields that now draw mass migration—the Bracero Program for agricultural workers in the 1950s, for example. But neither is suited to today’s wave of mass immigration. The confusing landscape of rights that has arisen since the Civil Rights Act of 1964 and the Immigration Act of 1965 would probably make such organized programs a nightmare of administration and litigation. The shortcomings of that alternative help explain how we drifted into the present system. Regulation can be so onerous that outright illegality becomes preferable.
Another problem in setting up a reasonable guest worker program is that all such programs have a record of evolving into something else: namely a euphemism for a program of settlement. European countries, especially Germany, ran Gastarbeiter (“guest worker”) programs that took up migrants from various Mediterranean countries (especially Turkey) between the 1950s and the 1970s. Economically, such programs brought qualified successes—mostly by moderating the wage demands of German-born unionized workers and adding a few years’ life to dying industries: textile mills in the North of England, linen mills in France.
Over the long term, this migration has been a net loss for European economies, as the Dutch social scientist Jan van de Beek has demonstrated exhaustively in a number of books and essays over the past three years. Constitutionally, this migration was a catastrophe, introducing something like an American race problem into societies where no such problem had existed.
The German program was meant to be a rather unsentimental way of getting short-term labor. Workers from Turkey could spend two years in a German mine or mill—then they’d be out, and their replacements would be brought in.
But from the perspective of the corporations that were employing guest workers, and saving vast sums on wages in the process, sending away a trained-up, skilled-up worker and replacing him with an unknown quantity was incredibly inefficient. So the corporations lobbied for exceptions. Once the principle was established for four years instead of two, why not six instead of four? And since it would be inhumane to keep a man apart from his family for that long, other newcomers were soon on the way. Now you’re talking about teaching German to a worker’s kids. If more kids are born, they may wind up with only German friends, unable to communicate in Turkish. How do you send these kids “back” to Turkey?
A guest worker program can easily wind up being an immigration program that dare not speak its name. In last three decades of the 20th century, the foreign-born population of Germany rose from three million to seven and a half million people—but the foreign-born working population remained steady at two million.
Although one can understand Hankins’s reluctance to get bogged down in discussions of immigration’s effect on the economy, a look at the economics of immigration itself is not out of place.
The problem with the economics of immigration under conditions of globalization is that citizenship in the developed part of the world is so stubbornly valuable. The Israeli political theorist Ayelet Shachar wrote an influential study in 2009 called The Birthright Lottery, in which she estimated that the difference in the life opportunities afforded by, say, a European passport over a North African one, or an American passport over a Latin American one, could run into the hundreds of thousands of dollars. It must be in the millions by now—at any rate, it’s a lot of benefits. Shachar’s point was a straightforward progressive one: there are lots of sources of inequality in the world that ought to be better accounted for.
But there is a more Trumpian way of looking at this differential: How is it that we’re running the gold mine that produces U.S. passports yet we’re giving them away by the millions to people who’ve broken our laws? We find ourselves in a trap. The case for mass migration is often made in terms of very small increments of value: a few dozen hands to get the harvest in over a period of two weeks. A couple more dishwashers to keep from having to raise the price of a cocktail. Someone to fill in a necessary position that no one will take because the whole factory is moving to Mexico in eight months. And yet, in a migration law framework determined by an over-rigorous reading of the 14th Amendment, the only currency in which we are permitted to settle what are essentially private petty-cash transactions is the conferral of eternal U.S. citizenship on an entire family, or the “path” to citizenship, which is the same thing, paid on credit.
It is to escape this logic in all its forms that James Hankins argues for a guest worker program. And quite sensibly, too. Most guest worker programs have a contradiction at their core: they assume immigrant labor is both essential and in need of limitation. A successful reform will require a convincing demonstration that what laws remain in place to limit immigrant labor will be enforced—and with rigor. The evidence of the past few years is that such rigor is seldom easy to muster.
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