INTERVIEW: America’s Borderline Disorder

By Reuvain Borchardt

David Bier, associate director of immigration studies at the Cato Institute, spoke with Hamodia earlier this month about the situation at the U.S.-Mexico border and Title 42.

Where are we and how did we get here?

In the broadest strokes, we got here — which is a place of dysfunction — by years and years of inattention to the issue, or to the extent that there was attention, it was counterproductive. So we’ve set ourselves up for an immigration system that’s at a point of failure.

Tell us about why Title 42 was first implemented, and what’s going on at the border now.

Title 42 is a public health code law that allows the CDC to order that the entry of persons into the United States be suspended if they are at risk of introducing a disease into the country. When the COVID outbreak first began, they used that authority. And the Department of Homeland Security has been relying on the order to expel people who have entered the United States.

Title 42 permitted the federal government to block someone from entering the country, as well as expel people who have crossed the border without advance permission to enter the country.

Before Title 42 was implemented, what happened to people seeking to come here without proper documentation?

Typically, most of the people would be put on a plane or a bus back to Mexico or their home countries. But under normal immigration law procedures, they could request asylum, in which case they would be subject to screening to determine if they had any credible claim of asylum. If they did, they’d usually be released and allowed to pursue that claim through the immigration courts, and some years later, you would get a decision on your case.

While your case was going through the courts, you would generally be allowed to remain in the U.S. — though Trump instituted a “remain in Mexico” policy, under which a relatively small share of asylum seekers were effectively expelled, but would continue to have their case go through the courts.

But under Title 42, there’s no case, period. They just put you on the bus and send you back. They’re not accepting asylum applications.

So the Biden administration wanted to end the implementation of Title 42 that had begun under the Trump administration during COVID, but some states sued to reinstate it. The case is going to be heard next month by the Supreme Court, and the Court ruled that Title 42 will remain in place pending a ruling.

Democrats, who are generally more in favor of COVID restrictions, say there’s no need for Title 42 anymore; whereas Republicans, who generally are not in favor of COVID restrictions, say Title 42 is necessary due to COVID. Is this just an instance of using COVID to implement your preferred policies? Is it fair to say that Republicans are trying to use Title 42 just as an excuse to implement their restrictive immigration policies?

Absolutely, no question. This is about the number of people being let into the country, and it has nothing whatsoever to do with COVID.

The Republicans argue that the situation at the border is untenable, that there is a crisis. What do you think of their arguments?

Well, there is a crisis at the border, there’s no question about that. We have hundreds of people dying, we have a huge population stranded there, there’s an ongoing issue with people who do cross the border and are released by Border Patrol, showing up homeless in cities along the border because they cannot get transportation to their final destinations right away. I just think Title 42 is making all these problems worse than they would otherwise be.

First, Title 42 blocks people from applying for asylum at a port of entry, which is the legal crossing point into the United States. By blocking off that legal avenue, you’re forcing people to cross illegally, enter the custody of Border Patrol, and Border Patrol stations fill up and they just dump people on the streets. That’s a chaotic and disorderly process compared to processing people at those legal crossing points and having an orderly procedure. So Title 42 is impeding the ability to create an orderly way for processing. And second, if you do cross the border illegally seeking asylum, because Title 42 is in effect and you know you will be expelled, you’re going to try to evade detection of the Border Patrol. And that’s what we’re seeing — that’s the biggest security issue at the border, the fact that the number of people trying to evade Border Patrol is at the highest level in 15 years. We’re having a huge number of car chases.

There’s chaos when people who would otherwise turn themselves in to Border Patrol, and wait in line to get processed, instead try to sneak into the country. It’s really taxing for Border Patrol and creates security problems.

Title 42 is the cause of much of that chaos. Finally, if they are actually caught under Title 42 and sent back to Mexico, there’s nothing for them to do but to try to cross the border again and try to evade detection again. The number of crossers who are repeat crossers is the highest it’s been in 15 years.

Most of these people coming illegally are coming through Mexico, but they’re not actually Mexican, right?

Yes, most of the arrests that Border Patrol is making are of non-Mexicans. But Mexicans are a very significant share — and most of the people who are being subjected to Title 42 are Mexican. There are a bunch of people from Cuba and Nicaragua who are not being expelled under Title 42 because it’s too logistically difficult to get them back to those countries and Mexico won’t accept them back. So they’re being released. [After this interview, Mexico and the United States completed a deal that would subject Cubans and Nicaraguans to Title 42 expulsions. — Ed.]

Generally, unrelated to Title 42, what does the immigration process look like for a poor, uneducated, unskilled person from South America with no relatives here, who wants to come here to work? What is the process he or she would have to go through, and how many years would it take for them to be able to enter the country legally?

The short answer is they wouldn’t get in. There really is no path for those people other than the diversity visa lottery program, which is 55,000 green cards awarded randomly, out of something like 20 million-plus applicants from around the world.

Those opposed to giving amnesty to illegal immigrants say, “You shouldn’t benefit from having cut the line; you have to go to the back of the line and start the process over.” But you’re essentially responding that there is no real line, and no real process to immigrate.

Right. There’s an unbelievably low chance of getting in — it’s literally winning the lottery at incredibly low odds. We admit almost no refugees from South America. So your getting in under the refugee program is off the table. Then there’s family sponsorship, and employer sponsorship. But employer sponsorship is implausible for people in these circumstances — even more implausible than the diversity visa lottery program. It’s so expensive to hire someone under those programs, and there are only at most 10,000 slots available for people who don’t have a college degree.

Those who are more pro-immigration, like you, say, “People only come illegally because they can’t come legally. So if you want to solve the crisis of illegal immigration, make to easier to come legally.”

Yes, absolutely. You should just create a process whereby people can come in, and screen out the criminals as best you can. And then we won’t have a crisis at the border.

If you could draw up America’s immigration policy, what would it look like?

What we had until the 1920s, which was, anybody can show up, and as long as they aren’t a criminal, they’re almost always admitted into the United States, with no quotas or limitations.

Those who are more restrictive on immigration might say, “But when we had an open-door policy, we didn’t have such an expansive welfare state. Milton Friedman famously said, ‘You cannot simultaneously have free immigration and a welfare state.’”

What’s your response to the argument that illegal immigrants are coming to get America’s social programs?

There are several responses. Even that Milton Friedman quote was in the context of saying illegal immigration is good, because they’re not eligible for these programs that had been created; they’re just coming to work and contribute. I think we should just create a legal process for which they can come without having access to those programs — which is already largely the case for people who are entering illegally. Just have an orderly process, as opposed to one that’s illegal and disorderly and costing the government a lot of money trying to prevent it from happening. The other response is that immigrants generally are positive for government budgets, which is true even for the lowest skilled immigrants throughout their working lives. Moreover, in the long term, population growth is good for government budgets.

So your view is, screen everyone; whoever is not a criminal or a terrorist should be allowed in, with the provision that they cannot get these social programs for a certain period of time.

Yeah, pretty much.

I don’t support having people automatically become U.S. citizens.

In Europe there are free migration flows between countries. The Americas should just adopt the same policy, and just let people move between countries. But if they want to become a citizen, that’s when you need a sponsor; you have to show very strong ties to the country. That policy would be a much more favorable outcome for all the countries involved.

Immigration restrictionists say illegal immigrants take away jobs from Americans.

That’s just an economic fallacy. There’s not a fixed number of jobs in the economy. When a worker comes in, they create value, and that encourages employment of workers elsewhere in the economy. So there’s really no net change in the number of jobs. If I come in, and I start working, and then I start consuming products and services elsewhere in the economy, those are jobs that I’m creating. And that’s what happens with immigrants, like any other person.

So you get to the absurd point where, if it’s true that more people make the country poorer, then we should really want to clamp down on childbirth and have a shrinking population. That’s obviously just an absurd position.

What if I am a poor, uneducated, unskilled American, looking for a minimum wage job — are my job prospects being affected by immigrants?

No, not significantly.

As immigrants come in and do these menial tasks, demand is created for jobs for Americans, in middle-tier positions. More construction workers create jobs for more supervisors. In the restaurant industry, you’ll have more immigrants working in the back of the restaurant and more Americans working in the front of the restaurant. There really isn’t any evidence of U.S. workers not being employed as a result of immigration.

On net, there’s a benefit. Of course, you can find individual anecdotes and so forth about someone who lost their job when their company started hiring immigrants. But on an economy-wide basis, where you have millions of hires and millions of people being fired every year, there’s not a net effect of more immigrants leading to greater unemployment or people dropping out of the labor force.

Even people who are very pro-immigration believe that prospective immigrants should be screened; you don’t like that people are just coming in unscreened. So what should our border security look like?

People from South America should just submit an application and be admitted right away, just like people can do if they are coming from Europe or Japan or many other countries in order to travel as tourists to the United States. We should just do that same policy but also allow people to stay and work. That policy would eliminate illegal immigration to the United States overnight. There would probably be a few people who have committed some pretty serious crimes who Border Patrol would still be around to scoop up if they tried to enter illegally.

So you believe if we vastly expanded legal immigration, our current Border Patrol staffing and capabilities are sufficient to catch the few people who would still try to come illegally?

Absolutely. We’re spending far beyond the reasonable amount on this right now. We’re spending more on Border Patrol, immigration, and customs enforcement than all other federal law enforcement put together.

I’d like to ask about the motivations of both sides. You hear a lot of accusations thrown around. Democrats accuse Republicans of being racist. Republicans say they just want to enforce the law. Republicans says Democrats support immigration because more Hispanics means more Democratic voters. Democrats say Republicans oppose immigration for the same reason. What do you feel are the motivations of the respective sides in this debate?

I think the biggest thing is partisanship, far and away.

Republicans are definitely concerned that Democrats are letting people in the country so that they’ll vote for Democrats. But also, it’s that the Democrats have unified around certain policies with respect to immigration, and if you want to defeat the Democrats, and you want to win as the Republican Party, you can’t win by being like the Democrats, you want to distinguish yourself in a serious way. And what we’re seeing is just more polarization. And it’s not just on immigration, but on other issues as well.

Do you think there is a racist or xenophobic motivation to those who are anti-immigration?

Well, I don’t know how you define “xenophobic,” but it’s certainly the case that people are irrationally concerned about immigrants compared to other people.

They apply economic logic in the immigration context that they would never apply to the context of people having more children or just more Americans, generally. There are a lot of ways in which people are more concerned about immigrants than they should be, given their positions on other issues. I do think that’s a form of xenophobia or irrational concern about immigrants. There definitely are people who are just racist and don’t want to see people who don’t look like them. I think that portion is small within the grand scheme of things. I think it’s much more focused on the usual concerns, but that they are elevated and applied in a sort of irrational way with regard to immigrants.

Do you see any political compromise on immigration happening anytime soon, or are we just going to keep going on like this for years and years, with millions of people coming illegally because they can’t get in legally?

I think we’re going to go on like this for years and years. The past is a pretty good predictor of what will happen in the near term. The political alignment isn’t based on immigration; I don’t think it’s the determining factor in most political races. But at the end of the day, there is a partisan divide now on the issue, like there has never been before. There needs to be a new voice in the Republican Party that brings enough of those votes, and you need a president willing to sign something. So we’re pretty far away.

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This interview originally appeared in Hamodia Prime magazine.

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rborchardt@hamodia.com