Oxford University Press, 2014, 360 pp., $29.95
Hiroshi Motomura, professor of law at UCLA, has written the most thoughtfully and honestly argued brief for a liberal immigration regime in the United States that one is likely to find. Exploring the implications of the Supreme Court’s landmark 1982 decision in Plyler v. Doe, which afforded undocumented minors unfettered access to public schools, Professor Motomura develops subtle legal, historical, and ethical arguments for opening up America’s borders so as to normalize the movement of hundreds of thousands of migrants who are otherwise “outside the law.”One virtue of Motomura’s project is that he takes seriously Americans who object to high levels of immigration or who seek to impose severe penalties on the undocumented. Though concerned to advance equality and contain the racial bias that he argues inevitably taints efforts by states and localities to expand their immigration enforcement responsibilities (leading him to support federal preemption of state policies struck down by the Supreme Court in Arizona v. United States), Motomura refuses to dismiss as “racist” the anxieties motivating such policies.Unlike many who argue for high levels of legal immigration as a realistic response to globalization, Motomura insists on the importance of the nation-state. Acknowledging that borders limit the freedom of movement of noncitizens and therefore reinforce international inequalities, he nevertheless argues that “national borders can create bounded societies in which meaningful versions of equality can flourish.” Lest cosmopolitans miss the point, he emphasizes: “Reliance on human rights give me less confidence as a vehicle for equality than domestic law protections and a domestic public culture that generally takes rights seriously.”Motomura’s central point is that the United States has experienced high levels of undocumented immigration for several decades primarily on account of its policies. As he asserts: “It is the highly selective nature of the modern immigration system that helps to create a large unauthorized population.” He focuses on the Bracero Program, which initiated the influx of temporary workers from Mexico that persisted for more than two decades, only to be abruptly ended in 1964. A year later, momentous reform legislation led eventually to today’s system of numerically equal quotas (the same for China as for Belgium) rigidly applied to all nations. To be sure, this reform eliminated the reviled national-origins quotas from the 1920’s. But it also ended what had up to that time been virtually unrestricted permanent immigration to this country from the other nations of the Western Hemisphere. So, as Motomura stresses, we closed the door to guest workers from Mexico and soon created narrow passageways for immigrants from countries of this hemisphere where previously the door had been more or less wide open.Invariably ignored in public debate, this history is well known to migration experts. Motomura’s contribution is to highlight how the functioning of this rigidly selective regime inevitably relies on highly discretionary—and therefore arbitrary—implementation at all levels of the system: from border patrol agents selectively enforcing the law, to immigration judges granting relief, to the president exercising his parole authority to admit refugees.All this is quite persuasive, as far as it goes. Yet Motomura’s account completely overlooks the motivations of migrants in this long-running drama. He fails to address the considerable evidence that most undocumented immigrants arrive here as “target earners” not intending to remain permanently but to work long hours and save as much as possible before eventually returning home. As activist lawyer Jennifer Gordon has observed, the Central American migrants she unsuccessfully sought to organize in suburban New York were “settlers in fact but sojourners in attitude.” Indeed, most such migrants end up staying. But for many the notion of returning home persists and affects how they raise their families here.Motomura’s oversight in this regard is especially troublesome since he is at pains to emphasize that Hispanic migrants, Mexicans in particular, have been treated differently than white Europeans arriving here. Indeed, he argues that whereas the latter were routinely allowed to enter as immigrants who would eventually become citizens, Latinos feel that “they will always remain strangers in the land” and understand that they are “wanted not as Americans in waiting, but just as workers.” Yet many Hispanics, certainly most undocumented Latinos, have arrived here never intending to stay.In fact, Motomura neglects government data revealing that even though the Immigration Reform and Control Act of 1986 granted legal permanent residency to 2.7 million undocumented persons, as of 2009 barely 41 percent had exercised the option of becoming American citizens. Whatever external impediments to naturalization these individuals may have encountered, the lingering effects of their own motives in coming here cannot be ignored. Yet Professor Motomura does precisely that.If migrants are not accorded much agency in Motomura’s account, employers certainly are. Indeed, he attributes to them almost exclusive responsibility for our present immigration system. In his account of the 1986 law that for the first time ever provided for sanctions against hiring undocumented workers, Motomura not incorrectly highlights how their effectiveness was undermined by employers who successfully lobbied Congress to limit likely burdens on them. Turning to contemporary efforts to enforce sanctions against employers, Motomura attributes resistance to more effective measures, including a national identity card, to “conservative, libertarian groups.”Once again, true enough, as far as it goes. Yet nowhere does Motomura mention the not insignificant role played by civil rights and immigrant advocacy organizations in gutting employer sanctions. Indeed, for an analyst so immersed in the history of immigration policy, he has nothing to say about how such public interest organizations have since the 1960’s transformed this policy domain. For while employers today do exert considerable influence over immigration policy, it is considerably less than it was for much of the twentieth century, when powerful agricultural interests dominated a highly decentralized federal agency, the Immigration and Naturalization Service, which was in any event regarded by members of Congress primarily as a source of patronage jobs. These cozy clientelist relationships were blown apart by changes wrought in American politics since the 1960’s. These included not only increased numbers of immigrants following on the 1965 reform, but also more aggressive media drawn to the new advocacy organizations that defined immigration as a civil rights issue. Politicians were eventually unable to keep immigration off the national agenda, where it had been for much of the twentieth century.Yet if Motomura exaggerates the influence of employers on immigration policy, his assessment of their impact on the labor market is surprisingly benign. To be sure, he is understandably preoccupied with the vulnerability of immigrant workers, especially the undocumented, to exploitation by employers. Yet as was highlighted recently by a controversy in Los Angeles between Iranian Jewish carwash operators and their Latino employees attempting to organize a union, the worst exploitation of immigrant workers is often at the hands of other immigrants, who either take advantage of home-country networks or simply refuse to adapt to American labor standards.In the final analysis, Motomura’s implicit position is that however much immigrant workers may get exploited by employers, their basic needs for imported labor must be satisfied. These include continued high levels of unskilled workers, despite arguments to the contrary from many analysts. To be fair, Motomura acknowledges such perspectives, but nevertheless insists that high levels of both skilled and unskilled immigration are in the national interest. Still, he never really explains how what is good for the landscaping contractors of America is good for America.Like many other thoughtful liberals who are instinctively skeptical of the claims of employers in policy debates, Professor Motomura curiously affords them enormous deference when they say they need more immigrant labor. One insight into this puzzle emerges as he grapples with the negative impacts of unskilled immigrant workers on the least advantaged Americans, particularly African Americans. To address these, he looks in part to the federal government to regulate labor markets. More generally, he argues that “the best solutions are not in limiting admissions, but rather in redistributing some of the overall benefits”Yet such faith in government has never come easily in America, especially now in an era when, rightly or wrongly, record numbers of undocumented immigration are themselves a sign to many Americans of massive governmental failure—not to mention inoperative health insurance websites, White House security breaches, and mishandling of the spreading Ebola virus. At a more mundane but nevertheless critical level, one might ask if the disadvantaged Americans most likely to be negatively impacted by unskilled immigrants will be adequately organized and represented to press their claims on the appropriate agencies?Motomura does not speak to such issues, but it seems clear that his concerns about equality will get addressed not primarily in the voting booths, but in the corridors and hearing rooms of the administrative state. But will the losers from the policies he advocates have the wherewithal to negotiate those corridors and get what they have coming to them? Such questions point to the limitations of an analysis that for all its legal precision and theoretical rigor lacks grounding in the political realities in which policy gets made and implemented.