Immigration reform has been the Sisyphean policy goal of the last few years. Following the tradition of at least the previous three two-term presidents, President Barack Obama didn't get around to prioritizing immigration until after he had been safely re-elected. Last summer, House Speaker John Boehner predicted Congress would pass an immigration reform bill by the end of the year; the Senate passed a mammoth bill later that month, but by November reality had set in for Boehner and he admitted immigration wouldn't see a vote in 2013. And earlier this month, Rep. Paul Ryan (R-Wis.) said that an immigration bill wouldn't reach the president's desk in 2014 either.
At more than 800 pages, the current immigration reform bill—just a "first step," former Department of Homeland Security Secretary Janet Napolitano explained—is stacked with deal sweeteners like massive new border security spending. Sen. Lindsey Graham (R-SC) said that the bill was hard to craft because lobbyists kept coming back asking for more to be put into it, which Graham considered a good thing. But perhaps something smaller would have a better chance of passing Congress. Libertarianism could offer a template that could help pass meaningful immigration reform.
A libertarian bill wouldn't have the kind of carve-outs and goodies that attract some lawmakers. But a bill that reflected a respect for civil and economic rights and limited government could garner enough support to pass. Even if it didn't, it would help to further define the emerging libertarian-authoritarian divide in Congress.
What would such a bill have to include? That question, which animates backers of current attempts at immigration reform, is perhaps not the best one to ask. More important is what would such a bill be trying to accomplish? What is the problem that "immigration reform" seeks to resolve?
For libertarians, the issue appears to be the millions of illegal immigrants denied legal status because they committed the misdemeanor of entering or staying in the United States. But for lawmakers not convinced that immigration is an economic benefit and a natural right, the problem involves border security. Immigration reform, then, isn't just about how to normalize the millions of illegal immigrants here, but also how to keep them out of the country in the future. Opponents of current reform efforts insist that dealing with the illegal immigrants already in the country should come after border security is improved and illegal immigration declines.
Of course, providing anything like "amnesty" to illegal immigrants incentivizes future illegal immigrants, these opponents argue. The argument is a weak one: The latest economic recession probably did more to dampen immigration across the U.S.-Mexico border than any additional enforcement could have.
From a rights and limited government perspective, normalizing the situation of illegal immigrants ought to take top priority. Lack of legal status prevents illegal immigrants from participating in economic and civic life. As I've argued before, it's not access to welfare that drives illegal immigrants' desire for legal status, but rather access to property and other rights that are, in our modern society, unfortunately tied to government documents and recognition. Focusing on a "pathway to citizenship" recognizes the need for illegal immigrants to have government recognition in order to buy and sell property, enter into contracts, use the court system for dispute resolution, and so on. It provides a way to depoliticize the issue and broaden its appeal.
A libertarian immigration reform solution, however, should take a piecemeal approach. It would not offer a complete "pathway to citizenship," but rather a path to legalization. It would focus on a specific solution to the specific problem illegal immigrants have: an inability to participate normally in the economy and in society because of a lack of government documents.
For a libertarian solution, the "path to legalization" isn't about delivering new voters for the Democrats or increasing the welfare rolls, but about creating a legal environment wherein millions of people already living in the U.S. can become full and active participants in the economy. It would involve providing a federally recognized legal status for illegal immigrants that would fall short of citizenship or permanent residency but allow them to participate in economic and social life—to open bank accounts, drive, acquire occupational licenses, board planes, and do the many other things that require an ID in America today.
This legal status would include something like a tax identification number, to provide illegal immigrants with a more formal way to pay taxes. It would also allow states to decide which local privileges to extend to the no longer "illegal" immigrants (thereby incorporating states' rights into immigration reform).
Concurrently, a libertarian solution would repeal the laws that penalize employers for hiring the wrong person. Employers have as much of a right to associate freely as immigrants have to travel freely. Government edicts should not come in the way of someone who wants to work and someone who wants to pay for work.
And what about border security? Most of the violence and lawlessness associated with the border is rooted in the operation of drug cartels. A libertarian solution to that, obviously, would be to de-escalate the drug war and legalize drugs, which would go a long way in stabilizing the U.S.-Mexico border. Meanwhile, coyotes—professional border-crossers you can hire to help you cross the border—and other human traffickers would be undercut by a U.S. immigration policy that provided a pathway for potential immigrants that was less risky and costly but not less likely to be successful.
From a limited government, free market perspective, the best way to increase border security effectiveness would be to cut the bureaucracy and spending associated with it. With more limited resources, the border bureaucrats left behind would be forced to prioritize rather than spend on any failure they want.
Such an immigration bill—one that focused on normalizing the legal status of illegal immigrants and legislating a more efficient, less costly border security—should be attractive to civil libertarians and fiscal conservatives alike. It increases revenue by creating millions of new taxpayers and cutting the border-related budget. It should also be attractive to any liberals and conservatives more interested in the human dignity of illegal immigrants than the economic fallacy that blames them for American joblessness.