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Immigration reform has to start on the street
A balance is needed between tougher enforcement and responsible compassion

BY CRISTINA RODRÍGUEZ
Cristina Rodríguez is an assistant professor of law at New York University's School of Law.

July 23, 2006

As the summer wears on, it appears less and less likely that Congress will reach a compromise on immigration reform. Legislators are stymied by the vast distance between the House and Senate approaches to illegal immigration.

But, as the federal debate has wound its rhetorically charged course, state and local governments have been busy considering their own legislation. The National Conference of State Legislatures reports that, by the end of April, 460 immigration-related bills had been introduced in 43 states. Although we have come to expect the federal government to exercise a monopoly over immigration enforcement, all these state and local efforts underscore that a coherent national policy on illegal migration may be beyond our grasp.

Meanwhile, state and local governments are trying to crack down on illegal immigration. Just this month, Suffolk County Executive Steve Levy proposed a law that would require companies seeking county contracts to swear formally that they do not employ undocumented workers. Similar laws have been considered this year in at least 30 other jurisdictions.

Across the country, state and local governments are staking out their enforcement positions. States have debated proposals that include penalizing landlords who rent to undocumented immigrants, cutting off health and welfare benefits to the undocumented and even making unlawful presence a state crime. It's not uncommon to hear the sponsors of many state measures claim, as Levy did, that they are being forced to pick up the slack of a federal government unable or unwilling to enforce the law.

But at the same time that state and local governments are looking for ways to deter illegal immigration, other lawmakers and community activists within the same states are pushing laws designed to ease the integration of undocumented immigrants into their communities. Familiar examples include the issuance of drivers' licenses or identification cards to the undocumented, as the city of New Haven recently has considered doing and as several states already have done. Some state and local policies also permit undocumented residents to pay in-state tuition at public colleges and universities, as is the case in the City University of New York schools, as well as in the California system.

But perhaps the best example of this countervailing trend is the emergence of hiring halls, where willing day laborers, many of them undocumented, can connect with employers in a regulated and safe manner. Both Nassau and Suffolk County have taxpayer-supported hiring halls, although Levy and others have strongly opposed them. The January 2006 National Day Labor Study documented that at least 63 day-labor worker centers exist across the country, many of them created or supported by municipalities cooperating with community groups. According to the study, most centers establish a system for allocating jobs each day and protect the health and safety interests of workers by setting minimum wage rates and monitoring employer practices and labor standards.

Although the federal government may control who can and cannot enter the United States - and therefore who can and cannot work - this recent activity underscores that it is state and local governments that perform the actual work of integrating those who arrive, whether legally or illegally.

These governments are more likely to bear the fiscal costs of unauthorized immigration in their education and health care systems, and they will therefore seek to do what they can to alleviate this burden. At the same time, they are more likely to hear and appreciate the day-to-day concerns of both immigrants and the broader community. Immigrants are also critical to the economic well-being of many towns and cities. As a result, even though much of the recent state and local talk has been enforcement-oriented, state and local governments also have shown great willingness to adopt practical policies designed to account for undocumented immigrants living, working and participating in local communities, despite their illegal federal status.

As residents of the New York area know, the legitimacy of day-labor hiring halls has been hotly contested. Indeed, a legal challenge is currently pending against the city of Herndon, Va., for its attempts to regularize day labor, and attempts to establish hiring halls in other cities have run aground because of public opposition. In the same vein, Gov. Arnold Schwarzenegger famously vetoed the bill that would have allowed undocumented immigrants to acquire drivers' licenses in California.

B ut this controversy is actually part of the solution. The apparent contradictions between enforcement-oriented legislation and integration-focused efforts stem from the public's feeling ambivalent about how to deal with the reality of illegal immigration. On the one hand, the kind of zero tolerance for lawbreakers embodied in efforts to crack down on employers resonates in a climate in which politicians traffic in sound bites and the cultural anxiety associated with immigration is high.

At the same time, public health and safety concerns - as well as the realization that millions of undocumented immigrants are functioning, contributing and integrated members of local communities - prompt legislation that takes a practical and humanitarian approach to their presence. What is more, while it is proper and important to police our national borders, we must also face the possibility that undocumented immigration is beyond any government's capacity to stop completely. Measures designed to help integrate the undocumented are thus necessary, even if they seem to give tacit support to illegal immigration.

This ambivalence and complexity cannot be captured by a single national policy. Instead, it must take patchwork form. The proliferation of varied state and local regulations related to immigration is itself evidence that managing immigration ultimately requires participation by all levels of government. Most state measures are neither signs of the federal government's failure to do its job nor inappropriate contradictions to federal policy. Instead, allowing the conflict embodied by most of these measures to be expressed, even when it creates friction with federal policy, is the only way to approach the immigration issue practically, humanely and democratically.



O f course, some local efforts to manage the effects of immigration will be misguided. Efforts like Levy's to put pressure on employers who hire undocumented workers, in particular, seem likely to be ineffective. They probably will affect only small employers, and they won't be coordinated with one another. Other states' efforts, namely laws that criminalize unlawful presence or authorize states to engage in their own border control, are almost certainly beyond the states' authority.

But as the immigration debate proceeds, and after it inevitably disappears from the national stage, state and local governments should continue to project strong voices on the issue. And, if Congress does get around to passing legislation, it should resist the temptation to preempt local efforts to deal with undocumented immigration, particularly those efforts designed to help integrate immigrants.

State and local officials, because they are on the front lines of the integration process, deal every day with the complex reality that characterizes transnational migration. It is a reality in which the sentiment that lawbreakers should not be rewarded means little in the face of market-driven traffic across borders, traffic that results in communities of people who must be treated as people and not as problems that can be enforced away. State and local governments are thus helping bring about a debate over how best to integrate undocumented individuals - a debate difficult to have at the national level with the frequency it demands. In the end, we cannot speak with just one voice on immigration.