Does The Senate Immigration Bill Mitigate The Moral Hazard Of Amnesty?

John M. Ellis Chairman, California Association of Scholars
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Disputes about ‘comprehensive’ immigration reform always center on the word amnesty: is the 2013 Senate bill an amnesty or isn’t it? People who like the Senate bill are adamant that it isn’t. “They call it amnesty,” said the Wall Street Journal‘s Kim Strassel, as if it were simply obvious that the word is being misused.

Fox’s much-respected Brit Hume is also indignant about the amnesty word, insisting that the dictionary definition makes it unconditional, whereas the Senate bill has conditions. But he’s wrong about that: amnesties often impose conditions, and Webster’s says as much. An illegal gun amnesty offers immunity from prosecution only if the illegal weapon is turned in. A tax amnesty offers immunity from prosecution and penalties to people who have not filed tax returns, but only if they pay what they owe in back taxes.

These conditions nail down two important principles. First, the offender must return to compliance with the law: the illegal gun owner can’t continue doing what he did. Amnesty doesn’t abolish a law. And second, the offender must never benefit from breaking the law. The tax delinquent can’t keep the money he should have paid, because then he’d be better off than people who never broke the tax laws.

Both principles are about moral hazard. It’s dangerous to waive laws, because laws invoked only some of the time are soon respected none of the time. But the moral hazard always present in an amnesty must never be exaggerated by allowing someone to profit from their crime, or to continue the behavior that broke the law in the first place.

The question is not whether the Senate bill is an amnesty. Of course it is: it suspends the operation of a law. The real question is whether the particular conditions of this amnesty raise, or instead lower the inherent moral hazard in mass forgiveness of law-breaking. Let’s call an amnesty with conditions that much reduce the inherent moral hazard a mitigated amnesty, and one which exaggerates moral hazard an aggravated amnesty. Which one is the Senate bill?

To answer that, look at the two principles that can be seen in tax and weapons amnesties. Does the Senate bill safeguard them? It does not. Tax delinquents avoid prosecution and penalties only if they give up the money that they in effect stole, and weapons delinquents have to change their behavior. But in the Senate bill, people who stole residence in this country are allowed to keep it, and they can go on behaving as before. They are allowed to profit from their crime. Worse, they are given a large bonus: a path to citizenship. For purposes of comparison, imagine an amnesty for bank robbers under which the robber escapes prosecution if he comes forward to confess — but gets to keep what he stole and is also given a reward. That makes it much better to be a bank robber than a law abiding citizen. An absurd scenario? Yes indeed, but that’s essentially what the Senate bill does. So far, this is surely a much aggravated amnesty, one which raises moral hazard sky-high.

But do the conditions imposed by the bill mitigate this exaggerated hazard to any appreciable degree? There are five of them: illegals would have to learn English, pass a background check, get to the back of the line for citizenship, pay back taxes, and pay a fine. Three of these are obviously not real conditions at all. Learning English is what any legal immigrant has to do to become a citizen. Passing a background check is again what any legal immigrant has to do. And the most important thing about getting to the back of the line (which any newcomer always does, whatever the line) is that the illegal immigrant is in the line at all. That’s more reward than punishment.

The other two conditions may look more serious, but they aren’t. Submitting tax returns is hardly likely to burden people who have been employed off the books for low wages; they are far more likely to qualify for payments under the earned income tax credit program, a plus for them rather than a minus. And as for the fine, it is set at the absurdly low level of $1,000, a tiny fraction of the economic value of residence in the U.S.

It is hard to escape the conclusion that these frequently cited five conditions try to make up in numbers what they lack in substance. They don’t provide a shred of mitigation for the moral hazard of an amnesty, let alone the much aggravated amnesty of the Senate bill.

The consequences of an aggravated amnesty are soon visible. President Obama¹s Dream Act by executive fiat created incentives for children from other countries to be sent to the US illegally, and the result was a flood of illegal children. The 1983 immigration legislation gave 3 million who had disobeyed our immigration laws a much better deal than those who didn¹t, and 13 million new illegals was the result. There are many ways to improve our defective immigration system: much expanded legal immigration, secure borders, enforcement of employment laws, and so on. But giving citizens of other countries a powerful incentive to break our immigration laws can¹t possibly help. A heavily aggravated amnesty should be out of the question.

John M. Ellis is a professor emeritus at the University of California, Santa Cruz, and Chairman of the California Association of Scholars.