Problems and Paradox of Restrictionist Immigration Law: An Economic Study of the Law

US immigration is now, more than ever, at the forefront of a polarized debate that implicates both enforcement and economics. The Trump administration embarked on an unprecedented strengthening of immigration enforcement that reduced refugee admissions to its lowest mark since 1980.[1] Between President Trump’s first day in office on January 20, 2017 to the end of the 2017 fiscal year, U.S. Immigration and Customs Enforcement (ICE) deported 61,000 immigrants from within the country, marking a 37% increase from the same time in 2016.[2] 110,000 people were arrested under suspicion of illegal immigration during the same period.[3] Though overall ICE removals of individuals intercepted at the border have decreased over the past few years, this reduction is partially a result of fewer people attempting to cross the border under Trump’s administration. Furthermore, Trump’s policies that prioritized the denial of refugees have only led to decreased immigration numbers. Overall, President Trump heavily concentrated efforts on the removal of undocumented immigrants–championing restrictionist immigration law.

Though he has yet to remove two to three million criminals and complete construction of a border wall that Mexico would pay for, President Trump drastically shifted immigration objectives with his seven executive orders that prioritized the restriction and deportation of legal migrants, unauthorized immigrants, and refugees, as well as the strengthened border control.[4] For example, Executive Order 13768 signed on January 25, 2017, significantly broadened what makes an immigrant’s deportation a priority.[5] Under Obama, an immigration is only prioritized for deportation if in addition to being removable, the person has committed serious crimes such as felonies or multiple demeanors. However, under Executive Order 13768, a person will be prioritized for removal if they have committed any crime at all, even minor misdemeanors, regardless of how many years they have lived in the country.[6]

In order to restrict immigrant entry, U.S. immigration laws adopted a contentious system of expedited removal. For the removal of increased numbers of immigrants, the process is significantly expedited, leading to a truncated adjudication process that faces many constitutional failures. According to a Congressional Service Report in 2015, more than 80% of all removal orders were issued outside of the court process.[7] Removal orders issued without court appearances are called summary removal processes, which deprive the migrant the right to appear before a judge and apply for status inside the U.S in exchange for an expedited process. By issuing summary removals, the Department of Homeland Security (DHS) denies immigrants access to both counsel representation and a judge, which signifies legal tension in itself. The DHS’s expedited summary removal orders, which have now increased on account of the new aforementioned executive orders, are ministerial in nature and bypass court hearings for immigrants. Rather than an appointed immigration judge in a federal judicial review, the power to prosecute and to judge–the rule of law–lie instead in the hands of Customs and Border Protection (CBP) or ICE officers.[8] Despite these legal challenges, the Supreme Court validated such compromises of fairness to support expedited removal in Castro v. U.S. In this April 2017 case, the Supreme Court denied the review of a removal decision that refused to examine the sufficiency of the removal process for mothers and children seeking asylum.[9] Rather, the Third Circuit Court of Appeals decided that Congress can constitutionally prohibit judicial review, suspending the writ of habeas corpus.[10] This decision meant that in the realm of immigration law, Congress possesses the power to strip people of their most basic constitutional rights (such as right to due process and from unlawful restraint), bending the very rule of law the US judicial system is built upon, rejecting the fundamental precept to liberty the nation was founded on. Furthermore,Castro v. U.S. cemented the idea that only American citizens deserve constitutional rights, which were defined as inherent to all people, and people who are undocumented or seeking refuge, are undeserving of such fundamental rights despite their individual circumstances and how many years they may have already been living in the U.S.

With stringent executive orders and immigration laws that in fact miss the rule-of-law in their truncated removal adjudication process, there is an undeniable emphasis on influx restriction. In April of this year, President Trump even threatened to make Mexican immigration control a condition of the new NAFTA draft.[11] This statement, along with the current conditions of immigration law, exemplify the concerns of many social and economic theorists on US immigration: that policy-makers are missing the central cause of US-Mexico immigration problems. Rather than focusing on the restriction of influx and entry, the deeper and more relevant cause of immigration may lie in the US economic policies’ inherent rejection of workforce mobility as a necessary demand of the capital mobility they champion. The US has consistently embodied a neoclassical liberalism that encouraged capital and employment fluidity since the start of the 20th century, but it simultaneously denies the movement of people. To what extent are US economic policies causing the very problem of undocumented immigration that the nation seeks to combat?

Neoclassical economic trends underlie most modern US economic decisions. Beginning in the mid 20th century, economists began to champion free trade, privatization, direct foreign investment, and open markets – the defining aspects of neoliberal economics.[12] This neoliberal tradition is founded in Adam Smith’s theory of the invisible hand of the market, where the free market is assumed to perfectly self-regulate. What neoliberalism meant for individual workers and participants in the economy is that every person is a rational economic automaton, whose decisions are made on a calculation of costs versus benefits.[13] The North America Free Trade Agreement (NAFTA) epitomizes US neoliberal economic policies. By adopting NAFTA, US mandates in its neighbor countries free trade, private foreign investment, and open markets that are aimed to modernize and bolster economies. A corollary of NAFTA is the assumption that by advancing the economies of countries and improving their standards-of living, workers would be more inclined to remain in their home nations, and immigration, into the US specifically, would decrease. However, since NAFTA was instituted, Mexican migration to the US grew by 452 percent from 1990 to 2008.[14] Additionally, most cyclical labor markets that attracted temporary immigrants gave way to an increase in permanent immigrants.[15] If NAFTA is thought to make immigration less necessary in the long-run, why has immigration consistently run opposite the intentions of the trade agreement?

The answer may lie in a fundamental flaw in the assumptions of neoliberal economics. By assuming individuals to be absolutely rational beings who always decide to maximize their personal profits, many US economic policies fail to recognize that, in reality, people are not so predictable. Migration can be the result of a variety of social reasons. People cannot be reduced to economic automatons, who only derive motivation from potential profits. Rather, individuals are often embedded in a nexus of social relationships. This very assumption about workers’ behaviours, regarding the consistent maximization of personal gain also presumes that people are able to move immediately based on their decisions - an assumption which has proven to be false in reality.

By mandating neoclassical economics in Mexico, US economic policies spearheaded global capital mobility while ignoring the unpredictable need for international labor mobility. Even though global capital and jobs move freely, workers do not. US economic policies seek to maximize employment, product, investment mobility, yet our nation’s immigration laws refuse to acknowledge the contingent need for international worker mobility, by emphasizing strict influx enforcement and border control. The tension between this prioritization only exacerbated immigration with unexpected and undesired consequences for both US and Mexico workers.

However, the quest for the best possible solution to resolve the existing conflict between US economic direction and immigration objectives remains unresolved. Many experts in immigration economics and law have proposed restoring cyclical labor markets to decrease the number of permanent immigrations. Others encouraged continued border enforcement as a short-term solution with an optimistic faith that free trade will eventually lead to a balancing of immigrants and emigrants from Mexico.[16] Most agree, though, that US immigration reform requires a more comprehensive understanding of global economic trends and the logic that underlies economic policies designed to influence immigration. At a time when the current administration’s immigration policies seem to once again reflect the anxiety that gripped post-9/11 America, it is time to reevaluate how the US can improve its approach to immigration reform by understanding, beyond border control, the influence of greater international economics.

Sources:

[1] Pierce, Sarah. "U.S. Immigration Policy under Trump: Deep Changes and Lasting Impacts." Migration Policy Institute, July 2018. https://www.migrationpolicy.org/research/us-immigration-policy-trump-deep-changes-impacts.

[2] U.S. Immigration and Customs Enforcement (ICE), Fiscal Year 2017 ICE Enforcement and Removal Operations Reports(Washington, DC: ICE, 2017), http://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf

[3] U.S. Immigration and Customs Enforcement (ICE),Fiscal Year 2017 ICE Enforcement and Removal Operations Reports(Washington, DC: ICE, 2017), http://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf

[4] U.S. Immigration and Customs Enforcement (ICE), Fiscal Year 2017 ICE Enforcement and Removal Operations Reports (Washington, DC: ICE, 2017), http://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf

[5] "Executive Order: Enhancing Public Safety in the Interior of the United States."The White House.January 25, 2017. Accessed October 28, 2018. https://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/.

[6] "Executive Order: Enhancing Public Safety in the Interior of the United States." The White House. January 25, 2017. Accessed October 28, 2018. https://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/.

[7] "DHS Appropriations FY2016: Security, Enforcement and Investigations." Congressional Research Service. 2016. https://fas.org/sgp/crs/homesec/R44215.pdf.

[8] Benson, Lenni B. "Immigration Adjudication: The Missing “Rule of Law”." Journal on Migration and Human Security5, no. 2 (August 8, 2018): 331-55. doi:10.1177/233150241700500206.

[9] "CASTRO v. UNITED STATES, United States Court of Appeals, Fifth Circuit." Findlaw. February 20, 2009. Accessed October 2018. https://caselaw.findlaw.com/us-5th-circuit/1049031.html.

[10] "CASTRO v. UNITED STATES, United States Court of Appeals, Fifth Circuit." Findlaw. February 20, 2009. Accessed October 2018. https://caselaw.findlaw.com/us-5th-circuit/1049031.html.

[11] Chiacu, Doina. "Trump Says May Tie Mexican Immigration Control to NAFTA." Reuters. April 23, 2018. Accessed October 28, 2018. https://www.reuters.com/article/us-trade-nafta-trump/trump-says-may-tie-mexican-immigration-control-to-nafta-idUSKBN1HU1ZE.

[12] Sassen, Saskia. "U.S. IMMIGRATION POLICY TOWARD MEXICO IN A GLOBAL ECONOMY." Journal of International Affairs 43, no. 2 (1990): 369-83. http://www.jstor.org/stable/24356983.

[13] Villarreal, Andrés. "Explaining the Decline in Mexico-U.S. Migration: The Effect of the Great Recession." Demography 51, no. 6 (2014): 2203-228. http://www.jstor.org/stable/43697502

[14] Broholm, Sergio. "Revisiting NAFTA: Reality for Mexico’s Small Corn Farmers." The Journal of Politics and Society21, no. 1 (2010): 1-23. doi:https://doi.org/10.7916/D8765C9R.

[15] Kaufmann, Florian K. Mexican Labor Migrants and U.S. Immigration Policies: From Sojourner to Emigrant?El Paso: LFB Scholarly Pub., 2011.

[16] Martin, Philip. "Mexican-US. Migration: Policies and Economic Impacts." Challenge 38, no. 2 (1995): 56-62. http://www.jstor.org/stable/40721611.