Immigration: So Now What?

With the death of the immigration bill, most people are left with a simple question: So now what? The plight of the 12 million or so illegal aliens in our nation is a very real situation, and this bill tried to do too much at one time and everybody on the fringes got so mad it really isn't a surprise it failed. Now that the Bill is dead, pundits say nothing significant is going to be done until 2009. Unfortunately, we now have 4% of our nation's real population left in limbo. Their status may not be legal, but it doesn't change the fact that they're here.

There was a tremendous amount of disappointment from our Senator Bob Menendez, a champion of the reform. Our Representative Scott Garrett loved this outcome, and seems to believe any reform must punish the undocumented. The Economist had an accurate take on the stance taken by him and many other Republicans.

That most Republicans would be against reform was a given: although a handful of them helped to craft the bill, most Republican legislators, and the bulk of Republican voters, saw it as an “amnesty” for those who broke the law by sneaking into the country. They were not persuaded by yet more promises to fix the border. Nor, however, did they propose any alternative measures for dealing with the people already working in America.

For many Republicans, it seems, this is a good issue for them to rally the base and raise money; a solution is not as beneficial to them as the problem existing. It's estimated that in the 1990's, the number of illegal immigrants increased a net amount of 500,000 a year (incoming; less deaths, returns, legalization, etc.). With the INS's estimate of 7 million illegals here in 2000, and an estimate of 12 million illegals being reported last year, the net increased to over 800,000 a year while the Republicans held a grip on Washington.

By the end of 2009, that means we're looking at roughly 14.5 million people. We were already talking about a population larger than that of New Jersey and Connecticut combined; we might as well throw on New Hampshire while the politicians in Washington twiddle their thumbs and raise campaign cash.

So what do we do?

With an estimated price tag of $41 billion a year, a mass deportation program (finding, jailing, deporting) is off of nearly everyone's table, except for people like Garrett (how else do you punish an illegal alien?).

Relying on the Feds to come up with some sort of meaningful ID system seems dicey. There's already a 3 million passport backlog they're dealing with; coming up with 12 million more IDs seems unlikely.

Building the "fence" is a giant waste of taxpayer money, that does little more than let Congress say "Look, we built a fence. We're doing something." Meanwhile, people will go around and under the boondoggle.

Going after the employer seems to make sense, but with so many people working for so many different places, it seems unlikely enforcement will be effective.

So what do we do?

The 14th Amendment might have a clue:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

States already must provide equal protection of the law to anyone within their borders; would the States be within their rights to grant residency to illegals if they choose?

Granted, Article I, Section 8 of the Constitution vests the power to come up with a uniform law of naturalization to Congress. However, I'm not talking about citizenship or a path to citizenship, I'm talking about non-transferable residency. There isn't anything in the Constitution that says States couldn't determine residency, at which point the Tenth Amendment defers to the State. After all, the States seem to be the ones who benefit and suffer the most from the presence of the undocumented.

On the positive side, States receive sales tax from the individual (if it applies), income tax from those they buy things from, and taxes from those who employ them. On the negative, States pick up the tab to fund schools, medical care and social services for the undocumented. So wouldn't it make sense to let places like Texas, California, and New Jersey craft a workable solution for ourselves? It could go either way, throw them out or let them stay, but at least there would be something.

There are more questions than answers with this issue, but while Washington is in a state of self-inflicted paralysis over immigration, why not give the States a shot? Communities have started taking their own steps anyway, ranging from housing crackdowns to creating worker centers, what would the States do? On many policy issues States have been the experiment lab, where a Federal policy is then crafted on their best practices, so why not now?

At the very least, it would make for one heck of a Supreme Court case.