On Nov. 6, President Obama won re-election with 39 percent of the white vote and 72 percent of the Hispanic vote. Republican challenger Mitt Romney’s share of the Hispanic vote (28 percent) was not much lower than John McCain’s share four years earlier (31 percent) and was higher than that of some other recent GOP nominees, such as George H.W. Bush (25 percent) and Bob Dole (21 percent). Yet on this slender evidence, the mainstream media has for months pulsated with the theme that Romney’s weak showing among Hispanics cost him the election and that his problem with these voters was the GOP’s “harsh rhetoric” on immigration.

The importance of the Hispanic vote to the outcome of the 2012 election is easily overestimated since many Hispanics live in states like California and Texas where a GOP loss or win was a foregone conclusion. Allison Kopicki, polling editor at the New York Times, explained in the Nov. 20 edition how Obama could have won re-election even if Romney had taken a majority of the Hispanic vote in key swing states. Moreover, the reasons for President Obama’s popularity among Hispanic voters are complex. Hispanics are on average less educated and wealthy than non-Hispanic whites and are drawn to generic Democratic policies such as raising the minimum wage. Even on the so-called “social issues,” Kopicki points out that Hispanics were far more likely than white voters to support Democratic priorities such as same-sex marriage (59 percent versus 47 percent) and abortion on demand (“two thirds” compared to “slightly more than half”).

No doubt some Hispanic voters were also moved by the President’s promise of a “path to citizenship” for the millions of illegal aliens residing in the country. Hispanic citizens are more likely than the rest of us to be related to, or personally acquainted with, an illegal immigrant who might benefit from the president’s amnesty. In addition, they could hardly have missed the relentless message of the liberal and Spanish-language media that all opposition to the president’s immigration policies grew from fear and hatred of Hispanics. Even so, opinion polls consistently showed that immigration policy was a low priority for most Hispanic voters. Indeed, in a May 2012 Gallup poll, immigration policy ranked fifth—behind healthcare, unemployment, economic growth, and the gap between rich and poor.

Even if some Hispanic voters are turned off by Republican restrictionism, Republicans face a dilemma. Their opposition to unions, minimum wages, and taxes on the rich gives them to little to show white working men and women why conservative Republicans, and not liberal Democrats, are on their side; limiting wage competition by restricting immigration is one of the GOP’s few truly blue-collar policies. In a study reported in the December 2012 issue of Social Science Quarterly, University of Houston political scientist George Hawley concluded that supporting amnesty would lose more white votes for the GOP than it would gain them in Hispanic votes.

That a number of Republican politicians have nonetheless leapt for the media’s bait should not be surprising. There have always been factions within the GOP that favored loose enforcement of immigration law, mostly those in thrall to businesses in search of cheaper labor but also libertarians who in principle detest market regulation of any kind. (Shortly after the election, the editors of the Wall Street Journal intoned: “The GOP needs to leave its anti-immigration absolutists behind.”) Yet along with these establishment conservatives, who have never hidden their affection for more liberal immigration policies, a significant number of formerly reliable conservatives in the media and Congress, such as Sean Hannity of Fox News and Senator Marco Rubio of Florida, have decided to go with the flow and pronounced that Republicans must do “something” to prove that they are not anti-Hispanic—or at least to get immigration out of the spotlight.

The apparent crumbling of Republican opposition to a general amnesty for the 11 million illegal aliens estimated to be residing in the United States has triggered a euphoric reaction and sense of empowerment among a host of liberal and business interest groups. They demand not only an amnesty for the huddled masses “living in the shadows” but also expanded “guestworker” programs to satisfy the demand for unskilled labor that fostered illegal immigration in the first place, tens of thousands of additional visas for skilled STEM (science, technology, engineering, and mathematics) workers, and millions of additional visas for the foreign relatives of naturalized immigrants now stalled in decades-long waiting lists. This accumulating “immigration wish list” is grudgingly accompanied by promises to increase security at the border and to make mandatory the now-voluntary “E-Verify” system, by which employers may instantaneously confirm the validity of newly hired employees’ social security numbers. The resulting package of amnesty, guestworker programs, more legal immigration, and improved enforcement bears the label “Comprehensive Immigration Reform” (CIR), so christened when a somewhat less grand version was proposed by President George Bush in 2004.

Where this will end is hard to predict. Hearings have taken place in both the House and the Senate. A group of four Democratic and four Republican Senators—the “Gang of Eight”—has introduced legislation that would legalize the undocumented population immediately but defer citizenship until certain enforcement targets had been met. The president is putting together a similar plan, to be proposed only if the Gang of Eight’s plan does not move promptly in the Senate. The chairman of the House Judiciary Committee, Virginia Rep. Bob Goodlatte, and the chairman of the Immigration Subcommittee, South Carolina Rep. Trey Gowdy, are expected to follow the example of outgoing committee chairman Lamar Smith, who opposed amnesty and favored upgrading the skills requirements for legal immigrants without increasing their numbers.

While it is early in the game, it is hard to imagine that the House Judiciary Committee will report out a bill that would meet the most basic demands of CIR advocates, let alone their more exotic proposals, such as unlimited numbers of visas for the foreign partners of gay citizens and immigrants. Even those Republicans who jumped on the amnesty bandwagon are having second thoughts about creating millions of new Democratic voters and are imaging versions of legalization that do not lead to citizenship—a non-starter with most Democrats. The wild card is Speaker John Boehner, who is widely believed to be among the small but potent class of Republicans who would let the Chamber of Commerce write the rules for legal immigration and give Democrats the amnesty for which they lust in the vain hope that the media would then stop casting Republicans as nativists.

No outcome to this byzantine process is predictable, but every aspect of immigration policy will be up for grabs, which means that the pending legislative process may yield the most fundamental revision of U.S. immigration law since the 1960s, shaping the country’s economic and cultural future for the remainder of the 21st century.

Given the multifaceted nature of immigration, is there a version of “Comprehensive Immigration Reform” that ought to appeal to true conservatives, who are not beholden to the bottom line of a global business or to the ideological dictates of Ayn Rand? I think there is. Indeed, the outlines of Immigration Reform that would be both comprehensive and conservative are not even that hard to discern, if the effort is made to understand what immigration is all about.

 

Since before the American Revolution, there has been a division of interest between American business, looking to minimize labor costs, and American workers, for whom minimal labor costs mean minimal incomes. In this respect, the current debate over illegal immigration is simply the present incarnation of the 18th century debate over indentured servitude, the 19th century debate over slavery, and the 20th century debate over unionism.

Myself, I don’t like unions. They create artificial monopolies in the supply of labor so that privileged castes of workers may extract high wages for mediocre service. Still, I know of no conservative who does not believe that a healthy society must be based on functioning families. With illegitimacy rates of over 70 percent among blacks, over 50 percent among Hispanics, and nearly 30 percent among whites, conservatives should be rallying to policies, including even a higher minimum wage, that make it more certain that young men and women may expect to raise families on their wages alone. After all, the original “American Dream,” as envisioned by the Founding Fathers, was of a nation of yeomen, not beholden by penury either to privileged interests or to the state. But since the days of the New Deal, we have not had the option of having parents compete in a free labor market for their family’s daily bread and then make do with the outcome. If competition with immigrant workers prevents native workers from earning enough to support a family, they will not form families at all, or they will elect Democrat politicians who will balance market outcomes with food stamps, Obamacare, and a host of other public subsidies that conservatives rightly regard as insidious when they become normal.

In other words, the affluent must expect, in the president’s words, to pay “a little bit more” in taxes if they are unwilling to pay a little bit more for lettuce, landscaping, and cleaning their pools. Maybe those libertarians who want to demolish the welfare state will someday have their way. But in the meantime, is it not better to ensure that a family-supporting wage is available from full-time employment so as to minimize the attraction of direct dependency on government? And is it not better to sustain a living wage by controlling immigration than by mandating wage rates or by empowering labor unions?

As a conservative who worries about a nation where many and eventually most men will depend on the government to care for their families, I hold to a very high standard of proof the claims of the business community that foreign workers are needed to perform unskilled work that “Americans won’t do.” If American public schools excel at anything, it is the production of unskilled workers, young men and women who in decades past would have counted on working as bricklayers, janitors, waiters, or even farmworkers to make a living. When slavery was abolished in the 1860s, cotton farmers wailed that the cotton would “rot in the fields.” When the Bracero Program for Mexican farmworkers was ended in the 1950s, tomato farmers made the same “rotten” argument. In both cases, technology quickly came to the rescue, and farmers learned to plant and harvest in a manner compatible with living wages for their workers.

The need for immigrant workers was comprehensively addressed by the U.S. Commission on Immigration Reform, which was authorized by the Immigration Act of 1990. The head of the commission for most of its seven-year existence was Barbara Jordan, a former Democratic congresswoman and African-American civil rights leader appointed to her post by President Clinton. The recommendations of the Jordan Commission, given their provenance, should be beyond reproach to liberals. Based on extensive studies conducted by the National Academy of Sciences, the commission concluded that the United States, with nearly 300,000,000 people and the world’s premier university system, suffered no overall shortage of workers and that amnesties and guestworker programs would do more harm than good.

 

The Jordan Commission also challenged the centerpiece of American immigration policy, the right of every citizen to sponsor the admission of members of both the family he created (his spouse and children) and the family that created him (his parents and siblings). Granting this priority to relatives of prior immigrants was a legacy of the 1965 immigration reforms, which replaced national quotas that favored European immigration with equal per-country quotas that opened the door to Asian immigration. By granting preference to relatives of prior immigrants, the sponsors of the reforms thought they would preserve an overwhelmingly European migration flow.

But in post-1960s Europe, most families had only one or two children, and most did well enough economically to stay put, whereas in Asia, Africa, and Latin America families of three or more children remained commonplace, and economic conditions made immigration to the United States immensely attractive. Within a few decades, family-sponsored immigrants were overwhelmingly originating from the Caribbean, Latin America, and Asia. Moreover, allowing sponsorship of the family that created the sponsor, as well as the family the sponsor created, led to chain-migration, whereby a naturalized immigrant sponsored his siblings and a spouse, the spouse sponsored her own siblings, the siblings sponsored their own spouses, ad infinitum. The result was exponential growth in the demand for immigrant visas and decades-long waiting lists in numerically limited categories, only temporarily relieved by a huge increase in visas for relatives in 1988.

The Jordan Commission recommended limiting sponsorship rights to an immigrant’s immediate family—spouse, minor children, and parents—with a ceiling of 400,000 per annum, allotting an additional 150,000 visas to refugees and exceptionally talented aliens. While one might not agree with all the findings and recommendations of the Jordan Commission, they were the outcome of a bipartisan process involving years of work under the auspices of the National Academy of Sciences. They ought to be the starting point for any reasoned national discussion about immigration policy.

The Jordan Commission also recommended that the E-Verify system, already mandatory for federal contractors, be made mandatory for all employers. The business community has one reason for opposing E-Verify with which I sympathize. Employers are already obligated to submit a Form W-4 to the IRS that gives the name and social security number of every new employee. The IRS shares that information with the Social Security Administration (SSA), which knows which numbers are invalid—or are suspicious because there are being used in multiple locations or belong to children or the very elderly—and generally does nothing about it. The SSA refuses to share evidence of fraudulent use of Social Security numbers with U.S. Immigration and Customs Enforcement (ICE). When Bush administration officials approached the chairmen of the Social Security committees in Congress about a fix, they were rebuffed.

In other words, but for a handful of senators and congressmen jealous of their bureaucratic prerogatives, the federal government would not need to mandate E-Verify. If employers knew that ICE would be notified of false or suspicious Social Security numbers—“G-Verify”—unscrupulous employers would be deterred from hiring workers they knew to be illegal, and most honest employers would voluntarily enroll in E-Verify to avoid the hassle.

 

There is no good policy reason for giving amnesty to the 11 million illegal aliens believed to be living in the United States, or to any significant portion of them. The only reason amnesty is considered at all is that the Democratic Party stands rock-solid against enactment of the Jordan Commission recommendations—or any other reform of the immigration laws—unless accompanied by a blanket amnesty for whomever happens to be here illegally when the reform is enacted. Arguments in favor of amnesty break down into two categories: “sympathy” and “inevitability.” Most Americans, myself included, can sympathize with aliens who have taken risks to leave their country in search of a better life for themselves and their families. Nevertheless, there are millions of aliens who have legally entered the United States for the same reasons. Some of them will live and work here for six years or more before their visas expire. How does one explain to one of those legal alien workers why he must now return home while the fellow working beside him, who sneaked across the border two years ago, is invited to stay for the rest of his life?

If making illegal aliens accept the same conditions on their stay as we routinely impose on legal aliens does not break our hearts, then what about their families? Some of their children may be U.S. citizens; even those who are not may have been raised in this country. I invite those whose hearts are broken to speak with some of the hundreds of thousands of legal aliens living or studying here on temporary visas, many of whom also have children born or raised in the United States but who will nevertheless repatriate with their families when their visas expire. When finished speaking with them, I suggest a call to a few of the millions of American men and women who serve in our armed forces and are expected every three years, with a few months notice, to move their households across the country, if not across the globe.

Illegal-alien advocacy groups take for granted that aliens with U.S.-born children represent a special case, since the U.S. government treats those children as U.S. citizens. But there is nothing special about their case, since many alien women who come temporarily to the United States, whether to work at an embassy or to visit Disney World, give birth during their stay and do not think of asserting that they have thereby acquired rights to live here forever. Instead, they feel blessed that their children now have the option of someday living here, as well as in the parents’ native land.

May/June 2013 issueTreating the American-born children of illegal aliens as U.S. citizens is in any event bad policy. While illegal-alien advocates focus on the privileges of which the child would be deprived if the United States did not grant citizenship, they ignore the responsibilities with which such children are burdened, including the obligation to fight in our wars if the military draft is re-instituted and the obligation to pay U.S. income tax on their worldwide income for the rest of their lives. The so-called “birthright citizenship” that supposedly is bestowed on children of illegal aliens (if one focuses on the privileges) or imposed upon them (if one focuses on the responsibilities) is based upon the Fourteenth Amendment’s prescription that all persons “born or naturalized in the United States, and subject to the jurisdiction thereof” are U.S. citizens.

This prescription was intended to remove any doubt that Americans born as slaves would be U.S. citizens. Yale Law Professor Peter Schuck, in his 1986 treatise Citizenship Without Consent: Illegal Aliens in the American Polity, laid out a convincing case that the term “jurisdiction” here refers to the mutual duties owed between an individual and the state. The courts have reasoned that Fourteenth Amendment “jurisdiction” does not apply to the children of Indian tribes and foreign diplomats, and this same reasoning would exclude from birthright citizenship the children of tourists, illegal immigrants, and other aliens whose presence here cannot reasonably be construed as an implicit pact with the child that whatever tribal or foreign citizenship he or she would otherwise inherit from the parents has been superseded by a greater bond of loyalty to the United States.

Three years ago, the Washington Post reported on the phenomenon of “birth tourism,” exposing doctors from China and other countries who had made a lucrative practice of arranging accommodations in the U.S. for well-to-do pregnant women from overseas who were entering the country for the sole purpose of attaining U.S. citizenship for their children, usually so that they would later be eligible for free or reduced tuition at U.S. schools and universities. Impoverished Mexican mothers have been crossing the border for this purpose for decades, giving birth to what are called “anchor babies” because they provide the child’s parents an “anchor” in the United States that may protect them from deportation and entitle them to certain government benefits. Although illegal-alien advocates have treated the term “anchor baby” (and even “illegal alien”) as derogatory, perhaps the Post’s revelations of how the well-off abuse an overbroad interpretation of birthright citizenship will permit the subject to be discussed in polite company.

The “sympathy” argument at least has the merit of starting with a fact—that many illegal aliens merit our sympathy, albeit not the grand prize of permanent residence and citizenship. The “inevitability” argument, that “we cannot deport 11 million people,” is wholly meretricious. No one in the immigration debate has proposed that. True immigration reformers have proposed only that aliens who find themselves in our country under any auspices should obey all of our laws. Aliens who have been admitted to study here are not allowed to work, and aliens who were not invited at all should not be allowed to work either.

Every day, between 400,000 and 500,000 aliens enter the United States by air, land, or sea. Depending on their visas, they may visit for a day or stay for years. We do not rely on deportation to ensure the return of the 11 million aliens who will enter the United States in the next three weeks, and we will not rely on deportation to ensure the return of the 11 million who happen to be living here illegally at present. Most alien visitors choose to obey our laws, including our labor laws. When they run out of money, they do not “self-deport,” they “go home.” If Congress enacts G-Verify, then even those alien visitors who are willing to break our laws will find that almost all jobs are closed to them and, like countless other visitors, they will go home when they run out of money.

Illegal aliens change jobs frequently. If the government were to institute G-Verify or mandate E-Verify, the great majority would soon be out of work. Presumably there are some innocent employers who would be inconvenienced and many innocent family members whose lives would be disrupted. Even a proponent of strict law enforcement might countenance a transitional program that granted temporary work permits to those illegal aliens who came forward, so that their employers might find replacements, their children might finish the school year, etc. Twelve months would be more than sufficient—and would give more notice than we give our sailors, soldiers, and Marines before shipping them and their families to Timbuktu.

In short, packaging together the recommendations of the Jordan Commission, enabling G-Verify, clarifying birthright citizenship, and issuing transitional visas to illegal aliens should qualify as immigration reform that is conservative as well as comprehensive. Sadly, comprehensive conservative immigration reform has little chance in the real world. The Democrats’ leadership will sign on to nothing that does not include an amnesty, and the Republican leadership will approve nothing that does not provide for guestworkers to pick our crops and build our homes. We may perhaps hope that serious conservatives serving in Congress will at least see that America gets as much as possible of the good, with as little as possible of the bad.

William W. Chip is an international lawyer in Washington, D.C.