Justice Antonin Scalia’s over-the-top outburst in the form of an oral reading of his dissent in Arizona et al. v. United States elicited a stinging rebuke from Judge Richard Posner of the Court of Appeals for the Seventh Circuit. Judge Posner’s rebuke of Justice Scalia is properly receiving a lot of attention, but the attention has been focused chiefly on Judge Posner’s comments on the unseemly political character of Justice Scalia’s outburst. But Judge Posner’s comments on the substantive issues involved in illegal immigration are also worthy of note.
Illegal immigration is a polarizing political and social issue. Many people hate illegal immigrants. Others regard them as an indispensable part of the American labor force. There are 10 million to 11 million illegal immigrants (for rather obvious reasons no one knows the exact number), and illegal immigrants are thought to amount to about 5 percent of the total labor force. Because they tend to do jobs that few Americans want, and because their wages are below average, many (though by no means all) economists believe that the illegal immigrants actually increase the wages of Americans (including legal immigrants). The reason is that the existence of a large body of low-wage workers increases the demand for goods and services both by reducing the cost of production and by their own purchases as consumers, and increased demand for goods and services translates into increased demand for labor and hence higher wages. This is not a certainty but seems a good guess of the effect of illegal immigrants. Illegal immigrants do receive some social services, but fewer than citizens do. It is unclear whether they commit more crimes on average than citizens; they may commit fewer. Of course, some illegal immigrants are criminals, and the Obama administration has decided to focus the very limited resources of the federal immigration enforcement authorities on catching and deporting the criminals. Focusing on them and leaving the law-abiding (law-abiding except for the immigration law itself!) illegal immigrants seems a defensible policy. And certainly state and local law enforcement can assist the feds in apprehending illegal immigrants who commit crimes (being in this country without legal authorization is unlawful, but, with some exceptions, it is not criminal); nothing in the Arizona decision prevents that.
In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.
As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population—below the estimated average illegal immigrant population of the United States. (So much for Arizona’s bearing the brunt of illegal immigration.) Maybe Arizona’s illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that.
PS I notice that one blogger points out that Judge Posner’s arithmetic is off. If the total number of illegal immigrants is 10-11 million, then illegal immigrants are approximately 3% of the US population, so that Arizona has a significantly higher ratio of illegal immigrants to its population than does the US as a whole. Still, if the number of illegal immigrants in Arizona were equal to only 3% of Arizona’s population, there would be about 200,000 illegal immigrants in Arizona. That Arizona may have an extra 160,000 illegal immigrants compared to the national average is not quite the same as “bear[ing] the brunt of the illegal immigration problem.”