Right the First Time, Senator Clinton

Switching too quickly on immigration

If Hillary Rodham Clinton's presidential campaign goes south, historians are likely to remember October 30 as the date of departure. In a Democratic presidential debate in Philadelphia, Clinton was asked about New York Gov. Eliot Spitzer's plan to issue special driver's licenses to illegal immigrants. Unflappable until then, she gave an answer that commentators and other candidates derided as confused and contradictory.

The day after, Clinton tried to clarify her stance, announcing that she "supports governors like Governor Spitzer who believe they need such a measure." Two weeks after that, she flipped: "As president, I will not support driver's licenses for undocumented people." So much for her vaunted sure-footedness.

She could be forgiven for stumbling. Something like 12 million unauthorized immigrants live in the United States. If Clinton was conflicted about them, so is the country. Everyone wants something done, but the nation is a long way from knowing what to do.

Opinion polls show that the public distinguishes between legal immigration (good, mostly) and illegal immigration (bad). The public believes strongly that the federal government is not doing enough to keep out illegal immigrants, overwhelmingly that more should be done to punish employers who knowingly hire them, and crushingly—by about 9-to-1—that illegal immigration is a serious problem. In other words, the public wants more done to stanch the inflow, both at the borders and in the workplace.

But what about the millions who are already here? Think of these as illegal residents, not just immigrants. Many have lived here for years, worked here, raised children (who are often U.S. citizens), put down roots in their communities. The public is ambivalent about cracking down on them. Even people who favor deporting illegal immigrants are ambivalent, because they doubt—justifiably—that mass deportation could work. In a May CBS News/New York Times poll, only a third of respondents said that illegal immigrants should be deported; even among that hard-nosed third, 42 percent said that finding and deporting most illegal immigrants wouldn't be possible.

On the other hand, mass amnesty, even with conditions attached, splits the country. Rewarding millions for breaking the law seems unfair and anti-social. And any blanket scheme to regularize illegal immigrants, regardless of what it's called, risks attracting more of them.

No wonder Washington is paralyzed. But state and local governments are not.

"Nature abhors a vacuum, and the current federal law is not enforceable and is not being enforced," says Arizona Gov. Janet Napolitano, a Democrat. "So states and local governments are jumping into the fray." This year Arizona passed a law suspending the business licenses of companies that intentionally hire illegal workers; a second offense means revocation. (The law is being tested in court.) Arizona is not alone: States have enacted 244 immigration-related laws in 2007, almost triple the number enacted in 2006, according to the National Conference of State Legislatures.

Many of these new laws make life harder for unauthorized immigrants.

According to the NCSL, Tennessee and West Virginia passed employer sanctions similar to Arizona's. Arizona, Colorado, Idaho, and Utah curtailed state benefits to illegal residents.

A few places, however, have gone the other way. Illinois made it a civil-rights violation for employers to demand more or different documents than those required by U.S. immigration law. San Francisco is moving to issue municipal identification cards regardless of recipients' legal status. Spitzer, a Democrat, tried to go in the same direction (and might have had better luck if his effort had been less ham-handed).

Washington's own backyard is a microcosm of the ferment: Anne Arundel County in Maryland and Prince William and Loudoun counties in Virginia have pursued measures cracking down on illegal immigrants; Virginia's Arlington County, along with the municipalities of Manassas Park, Va., and Takoma Park, Md., have fired back with resolutions repudiating such crackdowns.

When analysts notice this welter of state and local activity, they tend to dismiss it as a stopgap, a second-class substitute for action in Washington. They should consider the opposite possibility: that local activity is a _precondition_ for effective federal action. At the moment, there are three reasons that states and localities are better suited than Washington to cope with illegal residents.

First, states and localities can experiment, and thus innovate. They can learn. If illegal immigrants are offered ID cards or special driver's licenses, how many will come forward to take them? If health benefits are cut, will emergency-room costs rise? How reliably can regulators and prosecutors tell if illegal workers were hired on purpose? What will an employment crackdown do to the local economy? These are empirical questions that need experiential answers. States and localities are ideally positioned to do the research.

Second, localization allows for variety. Some communities are up in arms about illegal residents; others welcome them. Some feel besieged economically; others have jobs going begging. There is no reason Phoenix and Manhattan, or Detroit and Raleigh, or Prince William County and Arlington County should have the same policy—not, at least, until the country as a whole has a much clearer idea of what it wants to do.

Third, letting states and localities take the lead reduces social friction. States and municipalities that are angry about illegal immigration can vent without dragging the whole country along.

In the longer term, state and local action could provide the test bed from which a national consensus might grow. "It's not just the cliche about being laboratories of democracy," Napolitano says. "I do think different approaches need to be looked at in terms of what really works. Out of chaos may come order."

Immigration advocates worry that states and localities, left to their own devices, would run a race to the bottom by competing to punish illegal immigrants. Rick Swartz, a Washington consultant who has long been active in immigration reform, argues that crackdowns would become contagious as illegal immigrants were pushed from state to state.

Maybe. But crackdowns may lose their popularity when dishes go unwashed and houses unbuilt. In the wake of Arizona's new law, some businesses in Chandler, an immigrant-heavy community near Phoenix, "now seem like ghost towns," according to The Arizona Republic. "Many of these shops that cater to the undocumented population are struggling to stay afloat as many of their customers either pack up and move or save money as they wait to see if the new law will go into effect." Until now, anti-illegal-immigrant agitation has been a form of social protest. When the backlash begins to sting, look for a backlash against the backlash.

A second objection to state and local leadership is that immigration is a federal responsibility. But Washington's monopoly on immigration policy has not been a big success lately, and in any case states are muscling in. Instead of trying to reform everything at once, Congress might be better advised to hang back and give states and localities their head.

"The centrality of illegal immigration to the current discontent about the direction of the country may be taking us back again to a welfare moment," write Stanley Greenberg, Al Quinlan, and James Carville in a recent report for Democracy Corps, a Democratic-leaning research group. The comparison is telling. As with welfare a generation ago, the problem strikes deep cultural chords, the solution is not obvious, and the country is divided. In the case of welfare, Washington's answer was to abdicate to the states, whose innovations ultimately paved the way for a new national policy -- one that proved both stricter and more humane.

As of now, only one presidential candidate has had a kind word for local leadership on illegal immigrants. Her name is Hillary Clinton. In the fuss over her poor debate performance, few observers focused on what she actually said on October 30 about Spitzer's licensing plan:

"I did not say that it should be done, but I certainly recognize why Governor Spitzer is trying to do it…. Do I think this is the best thing for any governor to do? No. But do I understand the sense of real desperation, trying to get a handle on this? Remember, in New York we want to know who's in New York. We want people to come out of the shadows. He's making an honest effort to do it."

Articulate, this was not. But neither was it nonsense. On a better day, Clinton might have said more or less the same thing this way: "I don't particularly like what Spitzer is doing, but New York should be allowed to try it." That was the right answer. She should have stayed with it.

© Copyright 2007 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.