After one year of being shamed by protests, legal challenges, and denunciations from the Department of Justice; religious and business communities; civil rights, immigrant and labor advocates; and even foreign countries, Alabama's legislature and Gov. Robert Bentley announced negotiations to amend HB 56, the harshest state immigration law ever passed in the United States. Instead of compromising, however, they doubled down on their anti-immigrant position, making Alabama's law the worst in the nation.
HB 56 drew the ire of such a broad-based coalition because it criminalizes almost every aspect of an unauthorized immigrant's life. The law makes it a crime to work or be caught without legal status; makes it illegal for Alabama residents to sign a contract with unauthorized immigrants, or to knowingly rent property to them or hire them; and even requires that K-12 schools "determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States." Section 28 in particular, has already instilled so much fear in students and parents that thousands of Latino students are missing class across the state.
Although some of the law's provisions have been enjoined by the U.S. Court of Appeals for the Eleventh Circuit, there was collective hope that last week's negotiations would lead to progress and the legislature realizing it had overreached. This was true despite the fact that even harsher proposals had emerged, including HB 658, which under Section 32-6-9(5) requires the Administrative Office of Courts to report the names and case information of all unauthorized immigrants who have been in an Alabama court for any reason; Alabama's Department of Homeland Security must then make that information public on their website.
I gave Gov. Bentley credit at first for showing leadership by supporting much-needed revisions to HB 56 and for pushing back against two of the more ridiculous provisions in the existing and proposed laws. Those two particularly odious sections were the aforementioned Section 28 in HB 56 and Section 32-6-9(5) in HB 658. But after only one day of negotiations, the governor caved in to a legislature committed to making life miserable for immigrants, and failed to give a convincing justification for giving up and not vetoing HB 658.
I keep finding myself asking, "Why would they do this?"
In total, there are now about 168,500 foreign-born persons in Alabama, accounting for only 3.5 percent of the state's total population of 4.8 million. However, Alabama has seen a demographic shift over the past two decades. In 1990, there were only 43,533 foreign-born persons in the state (representing 1.1 percent of the total population).
Tripling the number of foreign-born persons -- many of whom are not white -- over two decades in a state like Alabama with an ugly and unwelcoming past when it comes to people of color, is likely to have contributed greatly to the anti-immigrant sentiment in the state. Some of this is probably just due to plain old xenophobia and racism and resistance to change. That's depressing, but it's a part of America we can't ignore.
Another factor is Alabamans" belief that foreigners and unauthorized immigrants are stealing jobs from native residents and draining the state's coffers by receiving public benefits. Because the anti-immigrant sentiment across the country didn't boil over until about two years after the Great Recession had started (creating record long-term joblessness), I believe job fears are key.
Immigrants are primarily in the state to work; that much is clear. Immigrants generally have a higher labor force participation rate than natives, and in Alabama, legal and unauthorized immigrants make up about 4.2 percent of the state's total labor force. But unauthorized immigrants cannot receive traditional benefits like welfare. Instead, the biggest cost to the public lies in educating their children (many of whom are American citizens) and emergency health care costs. Unfortunately, we do not have good data on the monetary value of these costs, but what we do know is that unauthorized immigrants in Alabama paid $130 million in state and local taxes in 2010 and are estimated to account for up to 6.2 percent of the state's gross domestic product (up to $10.8 billion). They make important contributions to the economy.
And there is anecdotal and statistical evidence that immigrants in Alabama are needed to do jobs that natives are not stepping up to fill. For instance, the need for workers to provide residential and community care for the sick and the elderly is growing in Alabama about twice as fast as the nationwide average. Many of these jobs will be filled by immigrants, in part because the state of Alabama does not provide home health care jobs with legal protection guaranteeing a minimum wage or overtime pay, making them unattractive to U.S. workers.
But the main example that has been widely reported is the agricultural sector. Farmers all over the state have been complaining about labor shortages and being forced to reduce crop sizes, and pointing to severe economic losses that have resulted. The state is even considering using its prisoner population to harvest the fields.
However, it should be noted that the issue of farm labor is complicated. First, employers should do much more to recruit U.S. workers and stop discriminating against them, and wages and working conditions for all farmworkers should be improved dramatically to attract more American workers. But even if all that were to happen tomorrow, no credible analyst predicts that enough Americans would be lured into the fields to keep the industry thriving. At least in the near and medium term, the American agricultural industry will simply not survive without immigrant labor -- both legal and unauthorized. We're seeing that play out in other states as well, most notably Georgia.
It's a valid and necessary exercise to debate American policies about who should enter, work, and reside in the United States, and to debate about how the government should manage the procedures that will implement those policies. But once a fellow human being has entered the country (with or without authorization) and begins to work for an employer, and to consume goods and services and pay taxes, he or she should be first and foremost considered a "worker" and participant in the U.S. labor market -- not simply an "immigrant" -- and thus afforded full labor and employment rights. And at the very least, basic human rights.
If immigrants are not afforded these rights, American workers will be adversely impacted. When immigrant workers are paid less than the market rate for their work, and even below minimum wage, it depresses wages for all workers with similar skills. Employers also lose when their competitors can undercut them by underpaying unauthorized workers. These are both valid reasons to oppose unauthorized immigration -- but the measures in HB 56 and 658 are the wrong way to deal with it.
The best way to protect the jobs, wages, and working conditions for all workers, but especially low-wage workers, is to apply and enforce state and federal employment and labor standards equally (i.e., in a "status-blind" fashion), especially when it comes to minimum wage and overtime laws and safety rules. A worker's immigration status should be irrelevant. If a worker has entered the country without authorization and is unable to obtain it, it should be entirely up to the federal government -- and not any state government -- to decide if and when the worker should be removed from the country.
Asking instead that clerks at the county water provider's office, priests, and kindergarten teachers police 4.2 percent of Alabama's labor force by tasking them with an essential function of our federal government is absurd and impossible to execute without disastrous consequences. The best way to protect wages and working conditions for Alabama's workers is to aggressively enforce their legal rights in the workplace. Making life miserable for immigrants so that they'll leave the state and shrink the economy does nothing to further that goal.
Instead, Alabama's government should focus on job creation to cope with the severe jobs deficit it continues to face. Compared to the rest of the country and the south, job creation has lagged in Alabama over the past year: Employment has only grown at about one-seventh the national and regional averages. The figure below shows that job creation has not improved since the passage of HB 56.
In addition, there is no reasonable economic argument for terrorizing children in schools by forcing them to expose their parents as unauthorized residents. Many of these kids are American citizens, and even those who are not have a legal right under Plyler v. Doe to a public education. There's also no rational economic argument for publicizing the private information of unauthorized persons who appear in court for any reason -- even if only for a traffic violation, and even when they are declared innocent by the judge. This is Alabama's way to terrorize unauthorized adults, by threatening them with the specter of vigilante justice by those in their local communities who don't approve of their presence.
Finally, it's also necessary to point out that Alabama's reaction to the presence of unauthorized immigrants is immoral and overlooks the past.
No one can deny that unauthorized migration has occurred in large part because employers have lured immigrants here with job offers. Also, the failure of the U.S. government to strictly enforce immigration laws before the Obama era created the perception that the United States would continue to turn a blind eye to the hiring of unauthorized workers. As a result, both among employers with job openings and among workers outside the country eager to work hard and improve their lot in life, expectations were created that this arrangement would continue indefinitely. American policies also created irresistible pressure for rural farmers south of the border to migrate northward. NAFTA alone quickly led to extreme rural poverty and joblessness in Mexico after its enactment, by destroying 1.3 million agricultural jobs in just 10 years.
Unauthorized immigrants are not solely to blame for the failures of our immigration system, and they should not be punished harshly for sins shared by the business sector and the Bush (I and II) and Clinton administrations. Consumers' desires for cheap fruits and vegetables and low-paid nannies have also contributed to the demand for unauthorized labor. The truth is we are all at fault. Regardless of whether they are removed or allowed to remain in the United States, every unauthorized immigrant who has a clean criminal record and came here only to work hard and make a better life for themselves and their children deserves our respect, and to be treated with dignity.
By passing and signing both HB 56 and HB 658 into law, the Alabama legislature and Gov. Bentley have ignored reality and history and acted maliciously toward their most vulnerable residents and taxpayers, while failing to advance the interests of Alabama's workers and the state's economy.