Regulating The Black Market

The ideal state for immigration would be that the United States takes in only the immigrants that it needs to fill open and low-wage positions, from a diverse mix of origin nations, and that those immigrants all get the appropriate work visas and then have a reasonable path towards naturalization or a return home after they’ve made enough money to make their sojourn here worthwhile. They would pay taxes, get livable wages, and be a part of the system. They would be welcomed for their cultural contributions, they would be valued for the fruits of their labor and contributions to our economy, and be an asset to both the U.S. and their nation of origin. What a wonderful world this would be.

The real world, of course, is a place very different from this pleasant reverie. More immigrants enter the nation than there are jobs for them. They work for employers, a disproportionate number of which are in the agricultural industry, for sub-minimum wages and some of them live in horrifying conditions. Others do pretty good work in industries that are fairly casual about paperwork and conforming to the law — think construction, one of the few jobs where convicted felons can earn a reasonable wage, precisely because construction employers are not particular about paperwork or background checks. Debatably, they depress wages in some sectors of the economy. They stay for long periods of time using counterfeit, stolen, or defunct documentation, when they use documentation at all; such a culture of avoiding and deceiving the law seems to necessarily create an attitude of lawlessness. They have families here and their children become citizens, work in the underground economy where they can avoid taxes, and drain our social welfare programs like public schools and TANF. They are resented by people already here – no more so than by properly-naturalized citizens who did it the right way. Nothing these negative effects of the phenomenon of undocumented laborers entering the country illegally is racist; however, resentment over these thigns is all too often tinged with racism, inspiring the worst in Americans.

The question always seems to me to come down to this: “How much are you willing to pay for a head of lettuce?” A directly related question is “How much would I have to pay you to spend ten to twelve hours a day picking lettuce?” The cost of the labor needed to create produce is directly reflected in the price of produce and cheap, plentiful food is one of the fundamental parts of the foundation of our economy. And if I’m willing to pay it, and he’s willing to accept it, what’s the problem? It occurs to me that the ways one might approach the issue from a policy standpoint, I’ve decided that the policy approaches one might take on the issue. On the far left side of the continuum we have something like “open borders” policies, and on the far right we have the policies moatdiggers love best. We might classify them thus:

Most Radical Reform
Most Dramatic Counter-Reform
Open Borders
Fast Track to Naturalization
Guest Worker Program
Liberalized Work Visas
Status Quo
Restricted Visas
Tightened Border Control
State Police Arrest and Refer to ICE
Fast Track Deportation
Shooting Illegal Immigrants for Sport

Arizona’s infamous new immigration law is the result of a public frustration with a very real phenomenon – the drain on public resources and the development of a counterculture that is overtly aligned along lines of evading and in some cases deceiving authority – that is an unavoidable result of having these people in our nation. But it’s not nearly as radical as some are saying. What it says (after modification) is that if an Arizona state police officer has a “reasonable suspicion” that someone who is being questioned or detained for some other reason is an undocumented alien, that person may be arrested and referred to ICE. Some law enforcement agencies in Arizona have already been doing this, and most law enforcement agencies pretty much everywhere are reputed to use the threat of doing this to intimidate people whose English language skills are not very good. Is it true? I don’t know, I’m not a Spanish speaker who has been detained by the police.

The biggest flaw I see with Arizona’s law is not so much its unconstitutional usurpation of an exclusive Federal power by the state of Arizona – although that’s a serious issue. Article I, Section 8 provides that Congress is to provide for a “uniform rule of Naturalization” which under current case law means that only the Feds can make and enforce immigration law. But I’m not entirely sure that a “reference” from a state law enforcement authority to a federal one when there is a legitimately “reasonable suspicion” of a Federal law being violated of a Federal law is contrary to this policy.

The real problem is, what is a “reasonable suspicion” of someone being an undocumented alien? The standard is something objective about the suspect that can be articulated and is not based upon a suspect classification (like race). There’s a bunch of things that I can think of:

  • Apparent inability to speak or understand English
  • Emotional reaction when the phrases “La Migra” or “documentos por favor” is used
  • Flight from police upon approach
  • Lack of identification documents
  • Large quantities of cash or, alternatively, very little cash or other implements of money
  • Congregation in areas known to be frequented by day laborers seeking employment

None of these things, though, is unique to the situation of the undocumented alien. A citizen of the U.S. could easily have one or more of these attributes under a countless series of legitimate or even low-level criminal scenarios any of you could easily imagine. So how is a police officer to form a “reasonable suspicion” that someone is an undocumented alien based on articulatable, but non-racial, characteristics? “I could just tell” isn’t going to cut it. It doesn’t seem workable to me.

Personally, I think going in the other direction is a smarter thing for us to do. We need the labor. I don’t want to pay $8.00 for a head of lettuce and that means we need cheap and plentiful agricultural labor, which for the most part only undocumented workers are currently willing to provide, at least in the border states. I don’t think amnesty is just as to those already here – I think that there should be a way to get those workers here integrated into the system without making them go home first, because that’s both asinine from a logistical point of view and putting the undocumented worker who wants to get into compliance into a difficult economic position. Perhaps a fine for those already here, which can be pro-rated and incorporated into their tax withholding?

But unless we’re going to make it easy to get that green card, we’re going to have more illegal immigration, more undocumented labor, and more of the problems associated with it. Attempts to build walls, moats, electronic fences, and any other sort of physical or enforcement barriers to entry will all prove laughably and expensively ineffective against simple human ingenuity mixed with economic desperation; already, people are squashing themselves ten at a time into the trunks of cars and literally risking death in the middle of the Sonora desert to enter the United States and an underground industry of coyotes willing to smuggle them in, often supplying their labor to illegal sweatshops, meth labs, or worse. And there are plenty of legitimate employers willing to offer them money should the immigrants succeed in escaping those hazards.

Simply put, there is a large black market for labor out there. There is very little that any government, at any level, can do to regulate a black market – without legalizing the trade. Intercession and penalization has failed spectacularly in regulating the black market for drugs. Why should we think that a similar tactic is going to work with undocumented labor?

Two Presidents in a row, one a Republican and one a Democrat, have both said that some kind of a guest worker program and liberalization of immigration and naturalization laws is necessary. They’re both right and even crediting the most noble of motives to the lawmakers in Arizona, what’s going on there is not a step in the right direction.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.