For at least twenty years, the term “illegal alien” (or similar variations like “illegal immigrant”) has been the subject of a contentious debate between pro-immigation and anti-immigration activists. Over the past decade, the Left has increasingly managed to limit the use of the term “illegal” to refer to any migrant. For example, until fairly recently, the Associated Press was still using the term “illegal immigrant,” but as Foreign Policy magazine notes, under ”pressure from immigration advocates, the Associated Press update[d] its stylebook” to change the term in 2013. Other media organizations have followed suit. Nonetheless, some government organizations occasionally continued to use the term “illegal alien” until 2021 when the Biden administration instructed the US executive branch to abandon the term “alien” altogether. “Illegal alien” is on its last leg.
The disagreement between Left and Right is largely over how to portray the immigrants themselves. The Left seeks to banish the term “illegal” so as to normalize undocumented migration and increase it in general. The Right, on the other hand, seeks to portray undocumented immigration as nefarious in order to further restrict overall immigration.
For the sake of argument, however, let’s say that we are agnostic on the matter of whether immigration should be increased or decreased.
So let’s ask: is the term “illegal immigrant” useful? The answer is: “it depends.” Moreover, the designations of legal and illegal do little to tell us about the productivity of a migrant, or the demands he or she makes of the welfare state. In practice, legal immigrants have greater access to public funds than illegal immigrants, and it shows.
How Bureaucrats Arbitrarily Decide What is Legal
The core of the problem lies in the fact that the designations of legal and illegal are not rooted in market transactions or voluntary exchange. Rather, the designations rely primarily on arbitrary bureaucratic criteria. For example: Congress has declared that if immigrant X has filled out the appropriate approved paperwork and has been given the green light by some federal agent, he is thus legal. Congress has also declared that if immigrant Y’s paperwork does not receive the necessary rubber stamp from some bureaucrat, he is not legal. In this latter case, private employers are not legally permitted to hire the worker regardless of the worker’s skills or the employers needs. Even for those specific “illegal” immigrants who have been offered jobs and lodging in the private sector—and can pay their own bills—the lack of proper government paperwork precludes these potential workers from peaceful exchanges with employers and others.
We can see the arbitrariness of this sort of thing in a number of other examples.
One example is the minimum wage: the government has declared that an employer cannot enter into a contract with employees at a wage level under the minimum wage. Thus, employment at or above the minimum wage is ”legal.” Employment below that level is “illegal.” The contract remains illegal even if both parties are willing. Thus, the line between legal and illegal in this case is totally arbitrary and based on mothing more than the central-planning impulses of federal lawmakers.
We see a similar phenomenon in relation to drugs. At the federal level, Viagra is legal because Congress says so, and marijuana is illegal because Congress has decreed it. There’s certainly no objective standard determining why the federal government grants private citizens the freedom to choose one but not the other. There’s no clear difference between the two in terms of long-term health risks. In fact, Viagra is likely a bigger risk than marijuana.
A final example can be found in the idea in the lockdowns that governments imposed on businesses and households during the covid panics of 2020. At that time, the government arbitrarily defined some businesses as essential while other businesses were deemed non-essential. In some jurisdictions, those workers deemed non-essential were even told to not leave their homes or risk prosecution. Thus, there were “legal” businesses and “illegal” businesses. This distinction was purely arbitrary, of course, and reflected nothing more than the biases of politicians and health officials.
In all four examples, the only real difference at work here is that a legislator or bureaucrat has decided that one drug/immigrant/employee/business fits a government-defined standard while another drug/immigrant/employee/business does not.
Nonetheless, the distinction between legal and illegal is relevant in the context of law and public policy. Obviously, when an employee and an employer agree the employer will pay the employee less than the government’s minimum wage, that can bring serious penalties. The same is true of using illegal drugs or hiring illegal immigrants. In all cases, the state has the de facto power to prosecute and sanction those who run afoul of the regime’s arbitrary decrees. The regime violates property rights when it prosecutes people for these peaceful activities, of course, but states have never much troubled themselves about violating property rights.
The use of the terms “legal” and “illegal” in these contexts also serve a rhetorical purpose. They tell us that government policymakers like the legal thing, and don’t like the illegal thing. Skeptics of the state’s “wisdom,” however, have long understood that governments have never been reliable arbiters on what is good, moral, proper, or healthy. The legal status of an activity or person or product has never been a definitive criterion on which to base an opinion about much of anything.
Using Legal Status to Expand the Welfare State
The arbitrariness of the legal/illegal distinction in immigration cuts both ways.
It’s true that the designation of “illegal” can be used to reduce immigration by cutting off access to the legal marketplace for immigrants without the proper government approval. On the other hand, the designation of “legal” can be used to expand taxpayer-funded subsidies. Contrary to the widely-held belief that legal immigrants are productive and illegal immigrants are unproductive, the reality is that legal immigration tends to be a larger overall drain on taxpayer resources that illegal immigrants. This is partly because there are more legal immigrants than illegal. But it’s also true because most legal immigrants have more access to the American welfare state than do illegal immigrants. Moreover, many legal immigrants avail themselves of the many generous American safety-net programs.
Indeed, a label of “legal” can often be applied to unproductive immigrants who take advantage of welfare programs and who may not even work for a living. Measures of legal immigrant use of welfare programs show robust levels of participation in these programs. The best that can be said of legal immigrants (on average) in this regard is that (according to some conservative measures) they collect welfare at slightly lower rates than the native population. But this should not be surprising. After all, after a mere five years of residence in the United States, most immigrants with legal permanent resident status have access to the full array of welfare programs including food stamps, Medicaid, CHIP, cash assistance, and more. Some US states (California, for example) offer taxpayer-funded benefits to immigrants without the five-year bar, including Medicaid and food stamps.
Consequently, the extension of the status of “legal” immigrant is really just an indication that the immigration is more likely to collect taxpayer-funded benefits of one type or another. Yes, illegal immigrants are eligible for some social benefits such as emergency medical care and taxpayer funded childcare. Legal immigrants, however, are eligible for far more in the way of social benefits. A permanent resident—once declared “legal”—cannot be deported for being willfully unemployed or collecting social benefits. In other words, an immigrant can obtain and maintain legal status even if he or she is unemployed, on welfare, and a net drain on taxpayers. Note that such a person can be “legal” while self-reliant immigrants with jobs and private economic support can still be arbitrarily labeled “illegal.”
Moreover, there are additional loopholes that allow the regime to declare many immigrants—many of them initially labeled “illegal”—as eligible for greater and more immediate access to taxpayer funded benefits. For example, “[r]efugees, people granted asylum or withholding of deportation/removal, Cuban/Haitian entrants, certain Amerasian immigrants” and other specific groups are exempted from the waiting period. By definition, everyone in these groups is a legal immigrant. Yet, it is not at all necessarily the case that legal immigration results in fewer demands on the taxpayers than illegal immigrants.
[Read More: “How the US Regime Subsidizes Immigration—both Legal and Illegal“ by Ryan McMaken]
So, is the term “illegal alien” useful? It’s not very useful beyond simply determining the state of that migrant’s paperwork and the migrant’s relationship with government authorities. When it comes to the private sector and the net economic contribution that person makes, the terminology doesn’t tell us much about any specific case.
A more fruitful question may be to ask how much taxpayers ought to be called upon to fund foreign nationals, legal or otherwise.1 By limiting access to the welfare state for all foreign nationals—not just the “illegal” ones, but also legal permanent residents—immigration policy would move toward a less arbitrary standard that is not quite so easily manipulated by government policymakers.
- 1There are many definitions of “foreign national” in use, and many organizations claim that legal permanent residents are not foreign nationals. Common defintions of “foreign national,” include “a person or organization who is not a citizen of the United States, and who is a citizen of a foreign country” or ”A non-naturalized citizen of a country.” The US Department of Homeland Security defines legal permanent residents as “foreign nationals who have been granted the right to reside permanently in the United States.” According to the State Department, a “national” is “a person owing permanent allegiance to a state.” WIt is reasonable, therefore, to conclude that a colloquial understanding of the term “foreign national” strongly suggests all non-citizens are best classified as foreign nationals.There are presently approximately 23 million foreign nationals living in the United States.
