Are Immigration Laws Like Jim Crow?
More than some people would like to admit.
JUNE 11, 2012 by DAVID BIER
Alabama Governor Robert Bentley was forced to defend his state’s harsh immigration law recently against charges that it amounts to a return to segregation-era racially biased policies. “What took place in the civil rights era was a series of unlawful actions against lawful residents,” Bentley said in response to the charges. “It was a shameful chapter in our state’s history. The immigration issue of today is entirely different.”
Parallels to segregation might be slightly overdone, but to call immigration policies “entirely different” is disingenuous. America’s restrictive immigration system was invented by the Eugenics Research Institute’s future president, Rep. Albert Johnson (R-Washington), who wanted to protect America’s racial purity from, in the words he quoted from a State Department official, “unassimilable . . . filthy . . . and often dangerous” foreigners. While such laws are no longer justified on racial grounds, their impacts today are just as ethnically disparate—more than 80 percent of immigrants labeled “illegal” are Hispanic, and 97 percent (pdf) of deportees are Hispanic.
Nor was segregation “unlawful”—it was a bizarre system of legal controls. Although it’s best known as a system of social control, it was just as much a system of economic regulation. Jim Crow began humbly—with segregated streetcars in Georgia in 1891—but quickly escalated, imposing on southern businesses ever more burdensome requirements: twice the number of bathrooms, waiting rooms, ticket counters, phone booths, even cocktail lounges. The president of Southeastern Greyhound told the Wall Street Journal in 1957, “It frequently costs fifty percent more to build a terminal with segregated facilities.”
Since laws that intend to control personal behavior are so rarely enforceable, governments conscript business people to act as de facto State agents. In this way social controls quickly morph into economic regulations. It is often forgotten that the railroad in the infamous Supreme Court case Plessy v. Ferguson (1896) actually helped fight the “separate but equal” doctrine because it “saddled employers with the burden of becoming the state’s race policemen.” Immigration law, which began as a way to restrict the movement of foreigners into the United States, has followed exactly the same pattern. Today a vast portion of America’s immigration code targets businesses, not foreigners.
Jim Crow’s regulatory state only affected businesses that served both white and African American patrons. For most small businesses, the costs of the regime were simply too great. Similarly, for many businesses today, hiring migrant workers has just become too dangerous. “I always relate it to tax law,” labor law consultant Barlow Curran recently told the Tampa Tribune. “Federal tax law is so complicated that if the IRS audits you, regardless of how careful you’ve been, they’ll probably find something. The same thing is true of farm labor law.” No wonder Immigration and Customs Enforcement has imposed $100 million in fines in just the last three years alone—more than the Bush administration’s previous eight years.
Alabama has only added to these regulatory threats. The state’s HB 56—enacted a year ago—mandated that employers use E-Verify to check the work authorization for potential employees. Over 60,000 Alabama businesses missed the deadline. If employers are unable to comply, they face license suspensions and may even be given the “business death penalty,” permanent closing.
As Isabel Wilkerson documents in her Pulitzer Prize-winning The Warmth of Other Suns, more than six million African Americans fled the Jim Crow South and left many southern employers facing labor shortages. “Farmers . . . have [woken] up on mornings recently to find every Negro over 21 on his place gone,” editorialized the Macon Telegraph in 1916 as the Great Migration began. “And while our very solvency is being sucked out beneath us, we go about our affairs as usual.”
Fleeing the State
Alabama is discovering that harsh immigration laws can just as easily “suck the solvency out beneath” them. “From a business point of view, it’s a terrible piece of legislation,” Henry Hagood, CEO of Alabama Associated General Contractors, told Reuters. “My counterparts around the country are saying, ‘thanks for sending workers our way.’” Tens of thousands of workers have already fled the state. University of Alabama professor Samuel Addy found that losing these workers reduced the state’s GDP by between $2.3 billion and $10.8 billion.
Conservatives who profess a commitment to the free market must extend that commitment to the labor market. They must realize that harsh immigration laws have the same dire effects on business as other burdensome regulations. They limit not only the free movement of foreign workers but also the rights of American businesses to hire, transport, and associate freely. They need to go the same way as Jim Crow—into the dustbin of history.