Wrong Law, Wrong Time?
By Staff News & Analysis - April 28, 2010

After Fox News analysts spent most of Friday defending Arizona's bill to target illegal immigrants, Judge Andrew Napolitano offered a different take on the controversial measure. When asked about Gov. Jan Brewer, Napolitano said her signing of the bill into law will have disastrous consequences … Napolitano: She's gonna bankrupt the Republican Party and the state of Arizona. Look at what happened to the Republicans in California with the proposition – … Cavuto: What happens? … Napolitano: Ah, Hispanics — who have a natural home in the Republican Party because they are socially conservative — will flee in droves. She's also gonna bankrupt her state, because no insurance company will provide coverage for this. And for all the lawsuits that will happen — for all the people that are wrongfully stopped — her budget will be paying for it. Her budget will be paying the legal bills of the lawyers who sue on behalf of those that were stopped. – Raw Story

Dominant Social Theme: The wrong law at the wrong time.

Free-Market Analysis: The above article is excerpted from the alternative news site Raw Story. While there are plenty of mainstream news stories about this issue, we are focusing our analysis on Raw Story because of their most interesting reporting of Judge Andrew Napolitano's perspective.

We ordinarily take a back seat to no one in our admiration for libertarian Judge Andrew Napolitano, the most decent commentator on American television (in our opinion) except for those times when Congressman Ron Paul (R-Tex) is himself broadcasting over the tube. But from our humble point of view Napolitano is not adding much clarity to the immigration debate by making these points. He is looking at the law from a political perspective when it might be more useful to examine it from a libertarian one.

Of course this is difficult. To begin with the immigration debate is muddy indeed as it depends in Western societies, anyway, on state action. To determine a libertarian position, one must reduce immigration to its basic essentials, which is difficult to do given the overlays of politics and raw passion that the issue commands. Napolitano, in this situation anyway, is attempting to place it in a strategic perspective. But we would humbly submit these sorts of analyses only make the confusion worse. Here's some more from the article:

The new law, which will take effect in late July or early August, was cheered by many, including Maricopa County Sheriff Joe Arpaio, whose tough crackdowns have made him a hero in the anti-illegal immigration community. He said it gives him new authority to detain undocumented migrants who aren't accused of committing any other crimes. "Now if we show they're illegal, we can actually arrest them and put them in our jails," Arpaio said. Critics claim the bill will effectively encourage racial profiling. President Barack Obama branded it "misguided." Hispanic groups across the country tend to agree with Napolitano's assessment of the bill.

Despite Raw Story's often-courageous take on the news, this report falls into the usual grooves of immigration reporting in the United States. The debate tends to be polarized, with Republicans insisting on enforcing existing laws – that are actually enforced only irregularly – and Democrats accusing Republicans of racism. In fact, Republicans may want to keep South and Central American immigration controlled because of perceived negative impacts on the electoral balance in the states. Likewise, Democrats want to expand South and Central American immigration because they believe the influx of workers will inevitably add to their electoral base.

But as we indicated above, there is another way to look at immigration which is market-based. If one begins with the idea that property ought to be privatized, then much of the confusion over the issue falls away. In fact, employers should be the ones making immigration decisions, not politicians. If employers want to provide work to immigrants, then those to whom the offer of work is extended ought to have the ability to take advantage of that employment.

The corollary to this is that the state ought not to extend benefits to immigrants. If no further work is available, then immigrants would have to move on or face the prospect of living on the most meager or resources. This would have additional benefits as well, as immigrants would tend to congregate in areas where employment was available – rather than in regions where the most generous state benefits were to be had. Market-based immigration would drain the issue of a great deal of emotion as well. No one could complain about immigrants "stealing" jobs if the employment opportunities were freely made and accepted.

Immigration is one of the most politicized issues of the modern nation-state. We would have preferred if Napolitano had offered up a libertarian position rather than a political one, as this sort of analysis only further reinforces people's perception that the state – rather than the market – ought to decide where people should live. But in fact people should be able to live where they can make an effective living without taking advantage of state-offered welfare largesse. In fact, welfare ought to not to be offered as a general rule. In a libertarian, free-market society, the community, especially religious institutions, would take care of the indigent. This has worked in the past, and worked well.

After Thoughts

Along with private money and a competition-based economy (versus a regulatory, rent-seeking one) privately controlled immigration is an important building block. That these issues are seldom discussed let alone seriously considered is an indication of how far America still has to go to return to its free-market roots.

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