Trump’s Wise, or Maybe Disastrous, Immigration Pivot

Are we trying to get worksite enforcement right, or just avoid it?

I was equal parts pleased and concerned by President Trump’s announcement last week that ICE would scale back its aggressive worksite enforcement in the agriculture and hospitality industries.

I was pleased because, on the narrow question, the president is entirely correct that “our very aggressive policy on immigration is taking very good, long time workers away from” those employers. As with the administration’s efforts to remake American trade policy, it can be true not only that the status quo is unjust and unsustainable, but also that abrupt reversal of longstanding policy causes unnecessary costs and disruptions. Suddenly removing a significant share of the labor force, that an industry has relied upon for decades with the knowledge and acquiescence of the government, is fair neither to employers nor workers.

I was concerned, though, because the administration’s change in policy appears to go in precisely the wrong direction. Forswearing immediate worksite enforcement, with no clear plan for its long-term implementation, creates the perverse incentive for illegal immigrants to flood into those industries and reopens the door for those who might be thinking of crossing the border: get one of those “jobs Americans won’t do,” and you can probably stay. Telling employers they can keep their illegal labor so long as they need it removes any incentive for them to rethink their business models or invest in creating jobs that Americans will do.

We are stuck right back in the trap that has bedeviled policymakers for the past couple of decades. Most people recognize that the best way to enforce immigration law going forward would be to establish robust worksite enforcement. This would allow us to move toward a legal immigration system that prioritizes high-skilled workers. It would allow us to target penalties at unscrupulous employers. It would turn off the magnet attracting illegal immigrants into the country. And it would force many of those who should not be here to make their own arrangements to depart in an orderly manner with a minimum of roundups and litigation.

One one hand, flipping the switch on worksite enforcement is enormously costly in both economic and human terms, placing the person whom we have allowed to live and work and even raise a family here on the same footing as the person who crossed the border last week, or who crosses back and forth frequently, or who has committed a violent crime. We won’t create a stronger labor market by throwing millions of people out of it overnight. If the ultimate objective is strong families and communities, tearing either apart would be counterproductive. What’s most important for the economy is putting future immigration policy on sound footing.

But on the other hand, that sound footing depends upon strong enforcement beginning today, to make the promise of future enforcement credible. If the world believes, based on how the United States deals with its existing population of illegal immigrants, that future illegal entry will be rewarded as well, the nation will never have control of its labor market. Policy reform is impossible without secure borders and effective laws.

Mandatory E-Verify should be the cornerstone of labor market enforcement. U.S. policymakers already have a system, called “E-Verify,” that validates the legal status of American workers. What’s lacking is the political will to ensure its consistent use. Employers should have no choice; they should face penalties for employing illegal workers even inadvertently, and penalties for intentional and repeated offenses should be catastrophic and include criminal prosecution. The law should recognize that the employer who opts for illegal and exploitable labor and undermines the power of American workers is committing a far more serious and less excusable offense against the community than the illegal immigrant pursuing a better life. Aggressive deterrence of employer malfeasance constrains the labor supply directly and, by eliminating the job opportunities and thus much of the incentive for illegal immigration, offers an efficient means of addressing that challenge as well.

For immigrants already in the country illegally, policymakers need a solution that will neither send sudden shocks through the labor market and millions of lives nor signal lackluster commitment to enforcing the law. They should pursue an approach that has received little consideration from either side of the immigration debate: last in, first out (LIFO). Under LIFO, the more recently an illegal immigrant has arrived in the country, the sooner he must leave. Florida’s implementation of Mandatory E-Verify only for new hires is a good example of policy along these lines.

Ideally, those who have only just arrived, migrate frequently across the border, or have a criminal record would be barred from the labor market immediately. Those who have already resided in the country for up to five years would be issued a work permit that lasts for the same number of future years as the number for which previous residence can be established. And those the United States has allowed to settle in the country over five years or more would be granted a five-year work permit that could carry through until more transient groups have left as scheduled, the nation had demonstrated firm control over its borders and its labor market, and progress becomes possible on a permanent resolution.

This approach would deliver on the Trump administration’s priorities far more effectively than an announcement that certain industries are just off-limits to enforcement. It would also be a potent political package to put before Congress. Anyone screaming that straightforward enforcement of the law as written is inhumane and unacceptable would have the option of supporting a reform that would better address the predicament of long-time residents and better ensure enforcement going forward. Or they could admit they just don’t want to enforce the law against employers or improve conditions for American workers at all.

Hardened criminals, those with active removal orders, and recent arrivals under the lawless Biden regime were always going to be the sensible and beneficial focus for Trump’s deportation efforts. But the long-term health of the American immigration system, and better outcomes for American workers, depends upon pairing that upfront enforcement with a more methodical model for addressing decades of failed policy and securing the labor market against the possibility of future floods.

What must be avoided at all costs is acceptance of the argument from employers that they simply cannot operate their businesses without cheap, often illegal, or else temporary, labor. That’s the equivalent of the multinational corporations insisting that efforts at reshoring will lead to $3,000 iPhones and $300 toasters. Yes, forcing a complete transition on Day One would yield all sorts of weird and undesirable results. But forcing it over five years, as firms refashion their business models and supply chains and make capital investments, as workers learn new skills, as markets do what they do best in using price signals to create incentives for solving problems? That we can do.

Jalapeno picking and radish sorting can be mechanized. So can meatpacking. Construction productivity can reverse its half-century decline. Facilitating this process by setting clear employer expectations for the future, not labor market expulsion for its own sake, is how restrictive immigration policy serves American workers.

As I argued in Jobs Americans Would Do:

When employing the nation’s workers is a competitive imperative, and increasing productivity is the key to growth, that is what firms will do. This principle is so obvious to capitalism’s proponents in other contexts, as they celebrate the power of competition in free markets to solve any problem, overcome any scarcity, innovate around any obstacle. Yet when labor is the problem to solve, scarcity to overcome, or obstacle inviting innovation, all is suddenly lost. If complaints about “jobs Americans won’t do” elicited only laughter, and creating jobs that Americans would do were a non-negotiable prerequisite to generating profit, imagine what capitalism’s awesome power might achieve.

If the latest announcement marks a shift toward serious and sustainable worksite enforcement it will deserve support, as April’s course corrections on trade laid the groundwork for a more gradual and strategic rebalancing. But if it proves to be a get-out-of-jail-free card for employers and an endorsement of the Old Right’s cheap-labor ideology that weighs corporate interests over those of American workers, it will be a terrible sellout of the coalition that elected Trump and a stain on his immigration legacy. The president’s top advisors (by which I do not mean the Secretary of Agriculture) know this, and are hopefully hard at work to help him get it right.

- Oren