On immigration, look to the states

Let’s say the improbable happens and Congress passes immigration reform. However it’s packaged — one bill or many — you can be sure it will focus on “sticks,” not “carrots.” That’s what is required to secure the cooperation of the “anti-amnesty” contingent in the House and the Senate: They demand a highly militarized border and “enhanced” internal enforcement as the price for a years-long, expensive, hurdle-filled “pathway” to citizenship.

There is an alternative to such an expensive, punitive approach. It builds on the compelling fact that the millions who are here illegally cannot be wished away, no matter what. It is bottom-up rather than top-down, and has the advantage of treating immigrants humanely, as befits American values. It also puts into play market forces, as communities and states realize the benefits immigrants provide.

To understand what’s wrong with the shape of Congress’ top-down reform, consider the “Gang of Eight” immigration bill the Senate passed in June. It would assign $40 billion in resources to border enforcement over the next 10 years, including funds to extend the border fence and to expand internal policing. But we know that pouring billions more into enforcement won’t end illegal immigration, nor will it remedy the situation of unauthorized immigrants who are already here.

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Focusing on enforcement was tried during the Clinton administration: Border funding increased from $1.7 billion in 1993 to close to $5 billion in 2002. The Border Patrol grew from 8,552 agents to nearly 18,043. And still the numbers of immigrants illegally crossing the Rio Grande increased: from 324,000 in the first half of the 1990s to 654,800 in the second half of the decade, according to Pew Research Center estimates.

Under President Obama, the enforcement effort has also emphasized deportations. There were fewer than 120,000 annually during the George W. Bush administration; in the last several years, there have been close to 400,000 a year. And yet, according to Jeffrey S. Passel, senior demographer for Pew’s Hispanic Trends Project, the population of immigrants living in the U.S. illegally, which dipped in 2008 and 2009 (the worst years of the recession), is rising again: “Current enforcement practices have not led to any measurable reduction beyond the 2009 period,” he told the New York Times.

At the same time, those practices have caused havoc in the lives of immigrants. Deportations have separated families and, as a 2011 Human Rights Watch report documented, in some cases lead to Kafkaesque incarceration. At the border, as security has tightened, migrants have tried ever-more dangerous crossings. In the last 10 years, more than 2,000 people have died of heat exposure on dangerous desert routes. In May, the Washington Office on Latin America, a human rights organization, noted that about five migrants died every four days in the 2011-12 fiscal year.

States, too, pursue inhumane (and counterproductive) immigration policies. In 2010 and 2011, according to one reckoning, only six states failed to pass some sort of anti-immigrant law, including five that adopted “copycat” legislation based on Arizona’s infamous SB 1070 law. Such policies were supposed to restore law and order and push immigrants to self-deport. It hasn’t worked that way.

Many of the provisions in the copycat legislation, for example, have been blocked or overturned by the courts as unconstitutional. And although there are solid data and anecdotal reports that show immigrants leaving states that institute anti-immigrant policies, or at least retreating further into the shadows, there is no evidence that they left the country. Besides, driving immigrants out or further underground hasn’t proved to be a good thing.

In Alabama, for instance, where one of the most draconian anti-immigrant laws went into effect in 2011, the results were disastrous: Tomatoes were left unpicked in the fields, schoolchildren went truant, immigrants working in the state legally were harassed and some businesses had to recruit refugees and Puerto Ricans to fill jobs local residents wouldn’t take. Commercial groups pressed for repeal and civil rights groups joined legal challenges to the laws. Many of those challenges succeeded this year. One Alabama economist estimated that the law would reduce the state’s economy by more than $2 billion a year.

Even before the cautionary tale of Alabama played itself out, anti-immigrant fever appeared to have been breaking. In 2012, the number of states addressing or passing any sort of immigration legislation fell, according to National Conference of State Legislatures. This year, it rose again, but this time many states were passing bills and resolutions that were pro, not anti, immigrant.

California was among them. Gov. Jerry Brown signed nine immigrant-related bills in October, including one that limits cooperation between local law enforcement and federal immigration authorities, and another that allows undocumented immigrants to obtain special driver’s licenses. “We’re the state of opportunity,” Brown said when he signed the driver’s license bill, “and we are sending a message to Washington.”

Americans can be of two minds when it comes to illegal immigration. The right brain sympathizes, but the left brain fixates on illegality. At the national level, negotiating a compromise between those poles has created “reform” that emphasizes punishment over integration and pours money into enforcement efforts.

But the pendulum is swinging. States and communities that are hostile to immigrants will not thrive; those that welcome them will, and that will shift the political equilibrium toward support for policies that integrate, attract and retain immigrants no matter their legal status.

The United States needs federal immigration reform — the states can only do so much. But it doesn’t need national reform at any price. Rather than settle for the punitive, enforcement-first proposals on offer in Washington, let the grassroots grow. They can push Congress in a better direction.

Jagdish Bhagwati is a senior fellow at the Council on Foreign Relations and a professor of economics and law at Columbia University. Francisco Rivera-Batiz is an emeritus professor of economics and education at Teachers College of Columbia University.