Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.
Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.
What enhanced immigration enforcement could look like
Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.
Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.
Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.
Beyond border security is interior enforcement, which Bush and Obama both escalated, reflected in record numbers of deportations. Recent proposals emphasize technology: the controversial E-verify program to force employers to enforce federal immigration law, or similar programs like 287(g), Secure Communities, or the Next Generation Initiative, which co-opt local police and undermine public safety.
Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.
In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”
Beyond diminishing returns, enhanced border security could prove nightmarish -- not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.
Interior enforcement and the privacy of Americans
Proponents for a national ID perversely claim interior enforcement as a justification for expanding government power. Indeed, a national biometric ID scheme has already taken operational shape across the country.
The "Secure Communities" program (also known as S-Comm) has endured criticism since its inception in 2008. According to immigrant rights advocates, it has sparked a humanitarian crisis, separated thousands of families, and even deported a steady stream of US citizens.
In addition to advocates, police across the country have also spoken out against enforcing immigration violations. Not only are they civil violations on par with a parking ticket, unrelated to criminal laws enforced by police, but local support for immigration enforcement undermines public safety by diverting resources from investigating real crimes and fraying the community trust necessary for police to learn about crimes from victims and witnesses.
While investigating S-Comm, legal advocates secured documents revealing a broader FBI plot called the "Next Generation Initiative" (NGI). For an agency notorious for its abuses of civil rights and civil liberties, NGI is dangerous fire with which to flirt.
Beyond the interior immigration enforcement goals for which it was purportedly crafted, NGI ultimately portends a national, trackable biometric ID scheme. Tone deaf to civil liberties concerns, conservatives and progressives in Congress have each openly welcomed that prospect.
NGI is even worse than the "papers, please" nightmare that many Americans have resisted at immigration checkpoints. It aims to leverage ubiquitous ambient surveillance to enable real-time tracking of Americans -- not in cyberspace (which the NSA already does), but in real space.
A biometric ID obviates the government’s need to demand papers, by giving authorities the power to locate and track individuals through aerial surveillance drones, closed circuit surveillance cameras, traffic cameras, drivers license plate scanners, and facial recognition technology.
Visit any city, and the FBI will be able to ascertain where you go, when, and with whom you visit. Meanwhile, thanks to Congress and the Supreme Court, whenever you use a phone or email to communicate, the NSA has a record of everything you say and hear.
Border security and the right to travel
Borders, and airports receiving international flights, are already the site of routine civil rights abuses that have drawn concerns from observers across the political spectrum, including business leaders.
Under the “border search exception” to the Fourth Amendment, borders and airports are "Constitution free zones," within which federal agents can search or seize items ranging from a mobile home to a laptop (or any other electronic device) without any basis for individual suspicion. Minorities -- including US citizens -- have even faced interrogation about their religious beliefs or political views.
But unlike interior enforcement, border security threatens more than merely privacy.
Recent discussions assume that, of course, the border security regime aims to keep threats (whether to national security or public safety) out of our country. That was a sensible assumption, back when migration across the southern border was net positive, or when independent courts in America protected robust individual rights.
But now that migration patterns have reversed, whom is the border security regime poised to interdict?
With judicial independence compromised and rights from Due Process to privacy rendered increasingly meaningless, there's no reason to presume that border security will always aim to keep others out. The very same infrastructure could just as easily keep Americans in.
Any number of potential crises could prompt mass migration, which could in turn shift the polarity of the border security regime. Climate change and extreme weather events have already caused regional migrations, but a disease pandemic could have much further reaching effects.
The underemployment of today's youth could also fuel a looming generational crisis. If significant numbers of Americans leave the country to seek work elsewhere, could "national security" attain a new meaning?
It has happened elsewhere before. Prohibiting emigration may seem more likely in the former East Germany than in America, but so does the "See Something, Say Something" campaign modeled on the Stasi's efforts to recruit citizens spies to monitor each other, and even their own families.
Mass warrantless wiretapping, or the power to detain citizens without trial or proof of crime, might also seem like powers more fitting an authoritarian state than the leader of the free world. Congress already approved extending both of those powers earlier this year.
Those powers are bad enough alone. Premature calls for tighter immigration enforcement could make them even worse. Conservatives and libertarians, as well as progressives, would do well to consider the potential unintended consequences of their proposals.
Comprehensive immigration reform is a goal worth pursuing, but should not become yet another excuse to abuse the rights of Americans.