New SSRN Immigration Articles

Here are some new immigration articles from the Social Science Research Network:

“Guest Worker Programs are No Fix for Our Broken Immigration System: Evidence from the Northern Mariana Islands” New Mexico Law Review, Vol. 41, No. 1, 2011 Albany Law School Research Paper No. 37 DOROTHY HILL, Albany Law School.  ABSTRACT:  The creation of a large-scale unskilled guest worker program has been a prominent element of comprehensive immigration reform proposals in recent years. This year it was featured as one of the “four pillars” of a reform framework endorsed by the Obama Administration. The principal ills that are cited as justifying immigration reform include the deterioration of border security, the violence associated with human smuggling, and the widespread mistreatment of unauthorized immigrants. Many believe that a large-scale guest worker program will help to resolve these problems by providing a lawful channel to divert the flow of unauthorized workers. This article argues that such faith defies the evidence. Namely, a guest worker program will not quell the flow of unauthorized workers or secure the border, and will inevitably be accompanied by exploitation and abuse of guest workers, among other problems, even if it includes greater worker protections than existing programs. This article reaches these conclusions by examining past and present federal unskilled guest worker programs, as well as the guest worker program run by the Northern Mariana Islands, a Commonwealth of the United States. The Northern Marianas’ guest worker program had in place many of the worker safeguards proposed by recent reform bills, and yet it, like all federal programs to date, contributed to widespread worker exploitation, depressed wages, predatory employment practices, a tremendous backlog of labor cases, and a high incidence of human trafficking. The Northern Marianas example illustrates that even a “worker friendly” guest worker program will not solve the ills associated with unauthorized immigration, but, rather, will serve to perpetuate them with the aid of state apparatus.

“Secularism and the Limits of Community” NYU School of Law, Public Law Research Paper No. 10-88 JEREMY WALDRON, New York University (NYU) – School of Law.  SBSTRACT:  This paper addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is “gated”) and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic that reinforces market exclusion and the disparagement of the claims of the poor. If religious considerations are to be used to uphold those claims and to mitigate exclusion, they need to be oriented directly to that task, and to be pursued in ways that by-pass the antithetical claims of community. Religious considerations are at their most powerful in politics – and are most usefully disconcerting – when they challenge the logic of community.

“Immigration, Offshoring and American Jobs” FEEM Working Paper No. 145.2010 GIANMARCO I.P. OTTAVIANO, Department of Economics and Paolo Baffi Centre on Central Banking and Financial Regulation, Bocconi University.  GIOVANNI PERI, University of California, Davis – Department of Economics.  GREG C. WRIGHT, University of California, Davis – Department of Economics.  ABSTRACT:  How many “American jobs” have U.S.-born workers lost due to immigration and offshoring? Or, alternatively, is it possible that immigration and offshoring, by promoting cost-savings and enhanced efficiency in firms, have spurred the creation of jobs for U.S. natives? We consider a multi-sector version of the Grossman and Rossi-Hansberg (2008) model with a continuum of tasks in each sector and we augment it to include immigrants with heterogeneous productivity in tasks. We use this model to jointly analyze the impact of a reduction in the costs of offshoring and of the costs of immigrating to the U.S. The model predicts that while cheaper offshoring reduces the share of natives among less skilled workers, cheaper immigration does not, but rather reduces the share of offshored jobs instead. Moreover, since both phenomena have a positive “cost-savings” effect they may leave unaffected, or even increase, total native employment of less skilled workers. Our model also predicts that offshoring will push natives toward jobs that are more intensive in communication-interactive skills and away from those that are manual and routine intensive. We test the predictions of the model on data for 58 U.S. manufacturing industries over the period 2000-2007 and find evidence in favor of a positive productivity effect such that immigration has a positive net effect on native employment while offshoring has no effect on it. We also find some evidence that offshoring has pushed natives toward more communication-intensive tasks while it has pushed immigrants away from them.

“Constitutional Attacks Against the Patient Protection and Affordable Care Act’s ‘Mandating’ Certain Individuals and Employers to Purchase Insurance and, Simultaneously, Restricting Purchase by Undocumented Immigrants and Women Seeking Abortion” Northern Kentucky Law Review, 2011 Arizona Legal Studies Discussion Paper No. 10-48 ROY G. SPECE, University of Arizona – James E. Rogers College of Law .  ABSTRACT:  This article briefly discusses certain historical events, situations, and processes within our health care system that preceded the Patient Protection And Affordable Care Act. It will describe some prominent goals, features, and possible outcomes of PPACA, with an eye toward elucidating four contexts: substantive due process and equal protection attacks against PPACA provisions (1) prohibiting undocumented immigrants from purchasing healthcare insurance in Act’s exchanges; (2) allowing states to bar abortion coverage from the exchanges and mandating that any abortion coverage therein be accompanied by separate funds, accounting, and paperwork for abortion and non-abortion segments of premiums paid; (3) excluding undocumented immigrants from programs states are allowed to create, using contractors, for provision of health care or healthcare insurance to relatively poor persons who nevertheless are not needy enough to qualify for Medicaid; and (4) mandating, most importantly, that individuals purchase healthcare insurance. The article will explain (a) the elements necessary to state a due process or equal protection claim against a provision of a government-created health care plan, (b) the general decision-making approaches and standards of review courts, including the U.S. Supreme Court, would probably use to decide such claims, and (c) apply this body of law to each of the four contexts. It concludes that contexts (1) to (3) present constitutional infirmities, while context (4) does not. The claims in context 4, even to the extent that they implicate fundamental rights to medical decision-making and informational privacy, should fail under United States Supreme Court precedents, including Whalen v. Roe, 429 U.S. 589 (1977).

“The Minimum Wage and Latino Workers” IZA Discussion Paper No. 5341 PIA M. ORRENIUS, Federal Reserve Banks – Federal Reserve Bank of Dallas. MADELINE ZAVODNY, Agnes Scott College, Institute for the Study of Labor (IZA).  ABSTRACT:  Latinos comprise a large and growing share of the low-skilled labor force in the U.S. and may be disproportionately affected by minimum wage laws as a result. We compare the effects of minimum wage laws on employment and earnings among Hispanic immigrants and natives compared with non-Hispanic whites and blacks. We focus on adults who have not finished high school and on teenagers, groups likely to earn low wages. Conventional economic theory predicts that higher minimum wages lead to higher hourly earnings among people who are employed but lower employment rates. Data from the Current Population Survey during the period 1994-2007 indicate that there is a significant disemployment effect of higher minimum wages on Latino teenagers, although it is smaller for foreign- than native-born Latinos. Adult Latino immigrants’ earnings are less affected by minimum wage laws than other low-education natives, and their employment rates appear to increase when the minimum wage rises. We investigate whether skill levels and undocumented status help explain these findings.

“Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion” Immigration Policy Center-American Immigration Council, Dec. 2010 The Pennsylvania State University Legal Studies Research Paper No. 46-2010 SHOBA SIVAPRASAD WADHIA, The Pennsylvania State University.  ABSTRACT:  On June 30, 2010, the Deputy Assistant Secretary for Immigration and Customs Enforcement (ICE), John Morton, issued a memo to the agency that reflected the Obama administration’s oft repeated intent to focus removal efforts on serious offenders. Morton noted: In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency’s highest enforcement priorities, namely national security, public safety, and border security. Coupled with last year’s announcement that ICE would not engage in the kind of major worksite raids that became common during the Bush administration, the “Morton Memo” potentially marks a new phase in the enforcement of immigration law. Moreover, the memo gives us insight into the Obama administration’s approach to prosecutorial discretion in immigration enforcement. A close reading of the Morton Memo reveals, however, that it is likely to be subject to multiple interpretations, offering some guidance but little clarity for handling the hundreds of thousands of decisions made annually by ICE agents regarding the arrest, detention, and removal of individual immigrants. This report explains the key provisions of the Morton Memo, points out its strengths and weaknesses, and offers recommendations for additional guidance that should be issued to fulfill the promise of reform suggested in the memo itself.

 “Proportionality: The Struggle for Balance in U.S. Immigration Policy” University of Pittsburgh Law Review, Vol. 72, 2011 MICHAEL J. WISHNIE, Yale Law School.  ABSTRACT: The current debate regarding state and local enforcement of national immigration laws is not primarily a struggle to achieve a more perfect balance in state-federal relations. Rather, it is an underlying, substantive disagreement about the content of our immigration policies.Another way to describe this more fundamental disagreement is as one about proportionality – whether the sanction of removal fits the offense for which it is meted out. Proportionality is a concept with ancient roots in Anglo-American law, and is reflected in numerous common law rules and constitutional provisions. In the United States, judicial enforcement of the constitutional command of proportionality tends to operate as a limiting principle, restricting government action only in extreme cases. The principle may have useful application in the immigration context. Removal orders should be subject to proportionality review by courts, both on a case-by-case basis and categorically. This is so under the Eighth Amendment, at least in cases where a removal order is the result of a criminal conviction. This is also so under the Fifth Amendment Due Process Clause, even where deportation is not the result of a criminal conviction, because a removal order is a punitive sanction that mandates departure and also bars lawful return for a period of years. Respondents in removal proceedings might argue that their removal – whether because relief has been denied, or because no relief is available at all – would violate the constitutional requirement of proportionality. Courts will honor these principles, and Supreme Court precedent, by adjudicating both case-by-case and categorical proportionality challenges. In appropriate cases, courts should find that removal is so grossly disproportionate to the gravity of the offense as to be forbidden by the Constitution.

“The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them” Cardozo Law Review, Vol. 32, No. 3, 2011 NATHANIEL PERSILY, Columbia Law School.  ABSTRACT:  The Framers of the American Constitution viewed the decennial census as providing a certain rhythm to American politics. Every ten years a state’s tax burdens and representation in the House of Representatives would change to reflect its share of the national population as revealed in the “actual enumeration,” the manner of which Congress “shall by law direct.” Much has changed since the first census, but the rhythm still remains. Perhaps unintended and unimagined by the Framers, however, is the rhythmic and ritualistic dance to the courtroom every ten years to argue over the census numbers themselves and the methods used to construct apportionment totals. This Article examines the law of the census: specifically, how to count, what to count, whom to count, and where to count them. For the most part this Article draws on my experience and research concerning the use of census data in the redistricting process; however, many of the topics discussed apply to federal funding decisions as well. The Article begins by describing the most recent legal controversies involving census methods, particularly imputation and statistical adjustment. When one thinks of the “law of the census,” these high-profile disputes probably come first to mind. In cases that have arrived at the Supreme Court at the beginning of each of the last three census cycles, undercounted cities and states have argued that census methods were deficient in that the procedures missed some people, double-counted others, or counted people that did not exist. Second, this Article explores the legal implications of the decisions concerning what to include on the census form, paying particular attention to the topics of race and citizenship. For the second time, the 2010 Census allows respondents to check off more than one race, raising a host of interesting questions concerning the legal implications of alternative methods for categorizing the multiracial population. More significantly for the 2010 Census, the long form, which was previously asked of one sixth of the population, has been replaced by the yearly American Community Survey (ACS), distributed to 2.5% of households. The ACS is the only source for citizenship data from the census, raising questions about the reliability of citizenship estimates for purposes of VRA litigation. Finally, this Article examines the related issues of who should be included in the census and where they should be counted. The section deals with special populations such as soldiers and other Americans living abroad, college students, the homeless, and prisoners. Prisoners, in particular, present an important case, as some have argued that the wholesale involuntary transfer of convicted criminals away from their communities toward more rural and often whiter areas has allowed for the padding of legislative districts in one part of a state at the expense of districts in other parts of a state. For the first time in 2011, the census will make data available in time for redistricting about the number of prisoners in each census block. Jurisdictions will now be able to subtract out prisoners from the census redistricting data file. Some states have even gone further and have reallocated prisoners to their pre-incarceration address for purposes of redistricting.

“Finding a Durable Solution for West Papuan Refugees in Papua New Guinea: A Role for Australia?” Human Rights Defender, Vol. 19, No. 3, pp. 17-19, 2010 SAVITRI TAYLOR, La Trobe University – School of Law.  ABSTRACT:  This article describes the situation of 10,000 West Papuan refugees living in Papua New Guinea and considers the role Australia could play in finding durable solutions for them.

“The Very Uneasy Case Against Remittances: An Ex Ante Perspective” North Carolina Law Review, Vol. 88, No. 5, 2010 ADAM FEIBELMAN, Tulane University – Law School.  ABSTRACT:  Money that individual migrants send back to their home countries has become a major source of foreign exchange for many developing and emerging economies. These remittances now represent a sizable percentage of the gross domestic product for many states; for some, remittance inflows are larger than all other sources of foreign capital. In recent years, scholars, policy makers, and international financial institutions have tended to view remittance inflows as a net benefit for recipient countries. Given the size of these transfers in the aggregate and their relationship to labor migration, it is essential for policy makers and scholars to continue to critically assess the effects of remittances and remittance policies on workers, the states that receive these remittances, and the states from which these remittances are sent. This Article argues that the existing literature on remittances almost universally underestimates the overall costs and negative effects of remittances and remittance-driven migration by failing to include various costs and harms borne by migrating workers and their families. If these costs were included in efforts to measure the overall impact of remittance flows, it is at least possible that remittances and remittance-driven migration would represent a net loss for some states and their citizens. If the overall impact of remittances is not positive for any particular state, then policy makers in that state may want to consider adopting policies to reduce or limit remittance-driven migration. They might, for example, avoid or scale back managed labor-migration programs. Depending on the particular circumstances of their state, they might also consider policies that reduce workers’ incentives to migrate for the purpose of earning money to remit home, including taxation of remittance flows, currency exchange controls, or liberalization of exchange rate policies. At the very least, if states’ current policies affecting capital inflows are based on a comfortable assumption that remittance inflows are broadly beneficial, this assumption should be reexamined to explicitly account for the costs and harms borne by workers and their families.

 KJ