The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Let States Issue Immigration Visas - a Federalist Response to GOP Governors' Migrant Busing Stunts
GOP governors' ploy highlights the value of giving states the power to issue their own migration visas. It can simultaneously ease labor shortages, reduce disorder at the border, enable more migrants to escape poverty and oppression, and help restore the original meaning of the Constitution.
The Republican governors of Arizona, Florida, and Texas have been busing recently arrived Latin American migrants to Democratic "sanctuary" jurisdictions. Florida Governor Ron DeSantis even had 50 Venezuelan migrants flown to the Massachusetts island of Martha's Vineyard. So far, this policy has mostly amounted to political theater, using migrants as props. But, despite the cynical motives of the Republican governors, the idea of giving migrants a chance to go to states that welcome them is a good one that could alleviate many flaws of America's immigration policy.
Liberal sanctuary states support expanded immigration to such an extent that they refuse to cooperate with most federal efforts to deport undocumented migrants. More conservative state governments often prefer a more restrictive immigration policy.
Both red and blue states can benefit from a policy allowing state governments to issue visas and work permits to immigrants not otherwise eligible for legal entry under federal law. State-based visas would enable state governments to take in immigrants who can fill needed slots in the economy, refugees fleeing poverty and oppression, and anyone else whom they might wish to welcome. Particularly at a time of massive labor shortages in many parts of the economy, such added migration would be a great boon to receiving states. Even some red states have recognized the need for additional immigrant labor in areas of their economies. For example, GOP members of Congress from rural states have sought to pass a bill increasing guest-worker visas for agricultural laborers.
A system under which states could grant visas without federal approval would enable them to swiftly secure as much labor as they wish – and also to help people fleeing oppression. The present US refugee system is slow to the point of sclerosis, admitting a record-low of 11,411 refugees in fiscal year 2021. Letting states do their own refugee admissions would enable far more people to escape poverty and tyranny, especially if states could partner with private organizations, along the lines of Canada's successful private refugee-sponsorship program.
Some conservatives claim the negative reaction of destination states to Republicans' busing of migrants proves that sanctuary jurisdictions are hypocritical, and don't really want immigrants to come. But the very fact that they embraced sanctuary policies is strong evidence to the contrary. Such laws deliberately make undocumented immigrants more difficult to deport, and thus increase the size of the migrant population. Many sanctuary jurisdictions demonstrated their commitment to their policies by fighting prolonged (and mostly successful) legal battles to defend them during the Trump administration.
Moreover, most of the blue-state outrage over the busing is not about the presence of the migrants themselves (whom charities and local residents mobilized to help) – but over the use of migrants as political pawns and the ways in which some were deceived about where they were going, and enticed with false promises of work permits. A state-based visa system could mitigate such problems by automatically granting work permits and leaving migrants in no doubt about where they are going. Sanctuary jurisdictions and others genuinely want more immigrants, and state-based visas could help them achieve that goal.
Conservative border states and others who seek to alleviate disorder at the border could also achieve some of their goals by such a policy. If state governments could issue their own migration, work, and refugee visas, many migrants would have no reason to cross the southern border in the first place. They could instead go directly by plane or ship to the states that grant them entry. Those that do cross the southern border would not need to do so illegally or cause any disruption. They could use legal ports of entry, and then quickly get on their way to their final destinations. Most of the disorder, violence, and death at the border is caused by the lack of legal pathways to entry, which forces people fleeing poverty and oppression into the black market. State visas could greatly mitigate that problem. A state-based visa system would also channel immigrants to states that want them, thereby reducing undocumented migration to those that don't. As Wall Street Journal columnist Jason Riley points out in a recent article, a system of state-based visas would simultaneously ease labor shortages, and reduce disorder at the border.
State-based visas also alleviate the harms caused by a situation where large numbers of migrants wait many months to have their asylum claims adjudicated, while also being ineligible to work legally, and thereby having to subsist on charity, welfare, or the black market. A state visa program can incorporate immediate work authorization, which would simultaneously benefit the migrants themselves, enable them to immediately start contributing to the US economy, and minimize reliance on public funds. Immigrants with work permits can swiftly begin to support themselves and their families.
State-sponsored visas are not a new idea. They have, in the past, been advocated by politicians from both parties. In 2017, Republicans Sen. Ron Johnson (Wisc.) and Rep. Ken Buck (Colo.) proposed a bill that would enable states to issue work visas for up to three years, and later renew them (though Buck later backed out). More recently, Utah Republican Rep. John Curtis advanced a similar plan. In 2019, then- Democratic Presidential candidate Pete Buttigieg (now Secretary of Transportation under President Biden) proposed a system of "place-based" visas under which communities seeking additional labor could sponsor visas for migrants who would have to remain there for three years, before becoming eligible for permanent residency anywhere in the United States. The Biden administration later put forward a version of this proposal. Visas granted by subnational governments have also been successfully used by Canada and Australia. For a more detailed overview of the Canadian and Australian systems, and various US proposals for state-issued visas, see here. But none of these ideas have made much progress in Congress, so far.
Increasing state control over immigration policy should also appeal to conservatives and others who seek a return to the original meaning of the Constitution. As James Madison, the "father of the Constitution," Thomas Jefferson, and other key Founders argued, the text and original understanding of the Constitution did not give the federal government any general power to restrict immigration. For the first hundred years of American history, immigration policy was largely under the control of the states. It may not be possible to fully restore that approach. But a system of state-issued visas would be a step in the right direction.
State-based visas are by no means perfect. Depending on how such a program is structured, immigrants who receive them might - at least initially - be confined to a particular state, thereby sometimes missing out on valuable job and educational opportunities. That could also reduce their potential contributions to the US economy, if a given immigrant could be most productive in a state other than the one that granted the visa. From a moral standpoint, it would be preferable to completely eliminate laws under which where people are allowed to live and work is restricted by arbitrary circumstances of parentage and place of birth.
But, as always, the best should not be the enemy of the good. For migrants fleeing poverty and oppression like the Venezuelans flown to Martha's Vineyard at the behest of Ron DeSantis, the right to live and work in even one American state would be a vast improvement over being barred from all. And pro-immigration states can further mitigate the problem by granting reciprocal access to each others' state-based visa holders.
Ron DeSantis has rightly said that Venezuela's socialist government "is responsible for countless atrocities and has driven Venezuela into the ground." If he and other Republicans mean what they say about the evils of socialism, they should stop using migrants as pawns, and instead support a system that makes it easy for victims of repressive regimes to find freedom in American states that want them. Progressives, libertarians, and others should also recognize that such a system would be a major advance over the status quo.
