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Immigration-An Economic Asset
by Gary Endelman

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

April 01, 2000 -- The Department of Labor's Bureau of Labor Statistics recently released its employment projections for the 1998-2008 decade. The report predicts high-tech job growth to outpace the estimates in its 1996 study which foresaw software worker demand to rise by 138,000 per year. Over the next ten years, however, the new forecast calls for a 200,000 annual increase, a demand far greater than the 46,000 undergraduate and 10,000 associate degrees in computer-related disciplines earned by American students. The H-1B cap will fall back to the previous 65,000 level on October 1, 2001, from the 115,000 plateau to which Congress lifted it in 1998. The Internet is exploding, unemployment is the lowest in 35 years, and numerous bills have been introduced in the Congress to either create new technology-based visas or retain the elevated H-1B cap, or even increase it in some cases, by allowing those with advanced degrees or high salaries to be exempt from the cap itself. The Administration is noticeably unenthusiastic and Vice-President Gore, who had previously made technology his signature issue, has dumped Silicon Valley in recognition of his political dependence on the political apparatus of the AFL-CIO who opposes any H-1B increase.

In his December 1999 Immigration Bulletin, Memphis Attorney Gregory Siskind reports that, in addition to lobbying Congress for more H-1B visas, high-tech companies are sending more business overseas to places like Israel, India, Ukraine and Ireland. Not only can they avoid the headaches of the US immigration maze, but such outsourcing lowers labor costs and is increasing at a 30% annual rate. Rather than making life miserable for high-tech employers, which is the raison d’etre of US immigration policy, other nations have gone out of their way to subsidize new construction and give tax breaks. The very trade unions that fight any H-1B increase and oppose all attempts to rationalize the employment-based immigration system now bemoan the loss of good-paying, high-tech jobs. Not only does this result in US workers being laid off as their employers become less competitive due to the loss of international talent, but it diminishes the prospects for creation of new jobs and increases the likelihood that the new technology in which unemployed US workers could be retrained will not be available.

This whole mess is a poignant illustration of what happens when immigration is seen as a political problem rather than an economic opportunity. What's going on? As much as we rightly celebrate our diversity, Americans have never quite been at ease with it. In the halcyon days of the Roaring Twenties, the noted writer F. Scott Fitzgerald said that France was a land, and England a people, but America was somehow different. It had about it still, observed Fitzgerald, the quality of an idea. Deciding who we are, and who is not a part of us, has been the pervasive theme of US immigration policy throughout our history. Since the Federalists under John Adams pushed through the Alien and Sedition Acts in 1798 out of a perception that immigrants favored the radical heresies of Thomas Jefferson and James Madison, US immigration law has been a mirror telling those who looked in it what kind of a nation we had become. The 1924 Immigration Act, for example, reflected the disillusionment and xenophobia that set in after World War One. The 1952 Immigration Act was a testament to the fears of the Cold War. The abolition of the national origins quota in 1965 was part of the Civil Rights initiatives at the core of the Great Society. Opening America up to mass Third World migration for the first time, this international civil rights measure has done as much or more than any other law to change the way America looks, eats, dresses, speaks, and plays. The expansion of immigration quotas in 1990 now seems a quaint historical anomaly, but then reflected a national consensus that was fractured during the 1990's.

There is no more graphic illustration of this lost unity than the movement in Congress to repeal or revise the hitherto sacred principle of birthright citizenship that has served to define the scope and texture of the American nation since the enactment of the 14th Amendment was imposed upon the vanquished South as the price for readmission to the federal union in the aftermath of our bloodiest conflict. As elementary school history students, we all learn that everyone born in the US is a citizen. Right? Not exactly. In addition to geography, birthright citizens must be "subject to the jurisdiction" of US law. Under the English common law, which governed during the first century of American jurisprudence, anyone subject to the King's protection owed eternal loyalty to the sovereign whose subject he was and would always remain. The same Congress that adopted the 14th Amendment in 1868 also enacted the Expatriation Act which gave every American the right to give up US citizenship. The notion of perpetual loyalty had given way to a more consensual tie linking every citizen to the state. It is also true that this same Congress excluded sovereign Indian tribes from the birthright citizenship clause because they were then thought of as independent nations to whom their members owed exclusive allegiance. Indeed, in Elk v. Wilkins, the Supreme Court turned down the citizenship claim of an Indian who had left the reservation on the theory that the bonds linking him to this nation could not be unilaterally severed.

As originally presented by Michigan Senator Jacob Howard, the 14th Amendment, designed to overturn the hated Dredd Scott decision and safeguard the citizenship of the freedmen against any subsequent Congressional majority who might be hostile to their interests, lacked any definition of citizenship. When one was added, only in debate did the Senators tack on the qualifying phrase "subject to the jurisdiction" of US law. The Supreme Court has never ruled on whether the children of undocumented mothers born in the United States came within the scope of the birthright citizenship clause. In the famous Wong Kim Ark case, the High Court did establish the Constitutional teaching that the integrity of a child's birthright citizenship is not tied to, nor dependent on, the immigration status of the parents. Decided in the late 1890's, Wong Kim Ark involved a child born in San Francisco of Chinese parents who were lawfully resident in the US but were barred from ever becoming citizens by the Chinese Exclusion Act. Both sides in the debate over birthright citizenship claim this decision as intellectual lineage. Those opposed to birthright citizenship argue, as did Yale Professors Peter Schuck and Rogers Smith, that illegal aliens are here in open violation of US laws and therefore are not subject to their jurisdiction. The basis for citizenship, so this reasoning goes, is consensual rather than ascriptive. The nation has not consented to the presence of unlawful aliens and they are not part of us as a result. The Supreme Court has always adhered to an expansive reading of its holding in Wong Kim Ark and the concept of birthright citizenship until this past decade has never been seriously challenged. Some opponents of birthright citizenship do not feel that any change in the 14th Amendment is necessary but others do require such an organic modification. In 1996, the Republican Party Platform took the unprecedented step of calling for the outright exclusion of undocumented children born in the US from its protective embrace.

Much of the opposition to birthright citizenship for the children of undocumented mothers comes from California, particularly in the border regions with Mexico, where it is charged that many indigent Mexican women illegally come to San Diego County just to confer US citizenship on their newborns. The cost of medical care for these births is alleged to be skyrocketing. Opponents of any change to birthright citizenship reject the reliability of these figures and argue it is the lure of jobs, not citizenship, which serves as the magnet pulling in the undocumented. Whatever the true merits of the debate, the fact that it is taking place reflects as nothing else could the breakdown of a national consensus on the value of large-scale immigration that seemed secure beyond challenge when Congress passed the Immigration Act of 1990. That this disintegration took place at a time of sustained national prosperity and historic low unemployment makes it all the more sobering. It is now up to those who see immigration as an asset to be maximized not an abuse to be curtailed to explain to the American people why it is in their interests to support more immigration rather than less. No longer can we rely on a humanitarian tradition that looks to assimilate those in need of help. We must always keep this heritage but it must increasingly be married to a cold-eyed realism that takes in those whose talent and energy can make our economy survive and prosper in what we hope will become a new American century.