Toleration and partial toleration: Non-enforcement and weak enforcement of law are always questionable. Legislatures that neglect to remove facially unconstitutional statutes present a profile in cowardice. For example Section 36 of the General Laws of Massachusetts, Part IV, Title I, Chapter 272:
Whoever
wilfully blasphemes the holy name of God by denying, cursing or
contumeliously reproaching God, his creation, government or final
judging of the world, or by cursing or contumeliously reproaching
Jesus Christ or the Holy Ghost, or by cursing or contumeliously
reproaching or exposing to contempt and ridicule, the holy word of
God contained in the holy scriptures shall be punished by
imprisonment in jail for not more than one year . . .
Michigan, Oklahoma, Pennsylvania, South
Carolina, and Wyoming also have blasphemy provisions of one sort or
another. The last prosecution for blasphemy of which I am aware
occurred in 1839.
Adultery remains a felony or
misdemeanor in roughly twenty states, and fornication in a few fewer.
The latter statutes are pretty clearly unconstitutional after
Lawrence v. Texas, and the former probably are as well.
Adultery and fornication have actually been recently prosecuted –
if rarely and very rarely.
Frequently committed but seldom prosecuted
crimes are like such dead letters as the blasphemy statutes in
engendering disrespect for the law. The rarely prosecuted are worse
than the dead letters, however, because they give ambiguous official
guidance to the governed. In addition, every rare prosecution of
common conduct is bound to seem a selective prosecution: random at
best and invidious at worst. Toleration and semi-toleration of
gambling, drugs, and prostitution have been a rich source of large
scale corruption.
Unenforced, partially enforced, and
weakly enforced laws undermine the rule of law. So there is something
to the frequently heard refrain that if we are going to have
immigration laws, they should be effectively enforced. But isn't
there exactly the same something to the proposition that if we are to
have laws against tax fraud, they should be effectively enforced?
At this point it is worth noting that
there is a significant difference between the degree of unlawfulness
of tax evasion and unlawful residence. Everyone commits a felony who
“willfully attempts in any manner to evade or defeat any tax
imposed by this title.” (26 USC 7201). Every fudge is a felony. By
contrast something like 40% of undocumented immigrants have committed
no criminal offense at all. Overstaying a visa is unlawful, but it is
not a crime. Illegal entry is a crime, but almost always only a
misdemeanor.
So we should all be puzzled, at least
initially, that many who are most enthusiastic about defending the
rule of law by forceful and expensive enforcement of the immigration
law would cut funding or eliminate altogether the chief enforcement
agency for the federal tax, the IRS.
In a stump speech Donald Trump asked
for issues facing the country, and was apparently about to mention
ISIS, when a shout of “IRS” came from the crowd. Trump responded:
“IRS is right. He says 'IRS' and I say 'ISIS.' Maybe it's the same
thing.” We can safely assume, I think, that Trump said this in his
court jester tone of voice, but his policy orientation is just as
safely inferred. It is one of the not so numerous points on which
their candidate's position seems pretty close to the mainstream of
the Republican party.
It is this radical difference in
attitude about residency enforcement and tax enforcement that is in
need of justification.
Magnitude: There are in the
vicinity of 12 million unlawful residents in the United States. That
is a big number. It is almost certainly smaller, however, than the
number of tax evaders. The surveys showing that up to 15% admit to
“fudging” on their income tax would project to 35 million on
federal income tax evasion alone. It is just possible that there is
some under-reporting of tax cheating in surveys.
Let's look at the dollars. What I think
we can expect to be nearly the least favorable calculation for
unlawful residents, that performed by the Heritage Foundation, has
unlawful families receiving about 50 billion more in services
annually than they pay out in taxes. The single largest contributor
to this figure would seem to be the cost of public school for the
children of families headed by an unlawful immigrant. Quite a large
percentage of those children, however, are United States citizens.
Heritage may not like the provision of the Fourteenth Amendment that
makes this so, but it is so. It seems not entirely ingenuous to
include on the unlawful cost side of the ledger the expenses of
educating children who, when they reach the age of 35, would qualify
to run for the presidency of the United States.
Some other calculators have it that the
tax contributions of unlawful residents are greater than the cost of
providing them services. (They pay into, but cannot collect from,
Social Security, for example.) Let us, however, suppress our concerns
about the intellectual integrity of the Heritage study and accept the
50 billion dollar figure. The loss to the public fisc from tax
evasion is in the plural hundreds of billions range. So unlawful
residents cannot be a larger problem than tax evasion in this
respect. Anyone who supports stringent enforcement of immigration law
and the defunding of the IRS on this basis is guilty, at best, of
willful blindness
Magnitude II: economy overall.
The overall effects of unlawful residents on the economy is going to
involve very large numbers indeed. The majority opinion of those of
appropriate expertise is that the presence of unlawful workers in
this country is a substantial net plus for the economy. The
politicians enthusiastic about immigration enforcement preach the
contrary. Probably most of them are sincere in so doing. If you limit
your sources of information to those that share your political
perspective, it turns out that the facts as you understand them will
support your policy positions a great deal of the time.
In evaluating the fiercest of the
immigration enforcement positions, Trump's, it is important to
predict the economic effects of a very rapid deportation of unlawful
residents. Here, I believe, there is near unanimity that they would
amount to a very great dislocation of the American economy.
What would happen if everyone, by a
similar stroke of magic, paid the tax that they owed? The downstream
effects would be complex, but it is a quick corollary that the
federal deficit would drop immediately and substantially. A slightly
more extended corollary is that the burden borne by the honest
taxpayers would trend downward. Many conservative politicians, it
hardly needs mentioning, would list reducing the deficit and the
burden on the honest taxpayer as their first and second or second and
first priorities.
In any event, there is a similarity
between the unlawful conduct of the tax evaders and the undocumented
in that both have significant economic effects. Best evidence,
however, has it that they would be of opposite polarity. An objective
observer, then, again, finds here no justification for pairing strong
enforcement of immigration law with weak enforcement of tax law.
Starve the beast. One
possible, and interesting, justification for soft pedaling the
enforcement of tax law is rooted in a political-economic theory of a
sort. Big government is bad. Cutting revenues should in time mean
cutting government. It is “starving the beast” in a phrase
popular among conservatives since the Reagan era.
No one so far as I know has ever said
this out loud but every tax dollar evaded is just as effective in
starving the beast as is a dollar cut from taxes. As a matter of
isolated principle, the beast-starvers should all cheat on their
taxes so far as they can get away with it. If the IRS is defunded, or
better “eliminated,” they will be able to get away with it
farther, as of course will the cheating of those motivated by
something other than high libertarian principle.
That cutting a dollar from the IRS will
mean about four dollars in lost revenue through unremedied tax
cheating would be of salience to the honest sort of deficit hawk, but
it is of no moment to the longer view of the starve-the-beast
conservative. It should, however, be of some concern to the latter
that the starvation regimen hasn't worked. Decreasing the revenue has ballooned the national debt , but has had much less effect on spending.
Political opportunism. History
shows no more effective way to motivate masses of homo sapiens than
to incite their hatred of outsiders of their own species –
outsiders of geography, race, language, culture, or religion. A
politician's voter base may well be chock full of tax cheats. They
look like, sound like, and act like his family, friends, and
neighbors. Indeed, the cheats are surely well represented within each
of those groups. It would be boorish to brew up resentment against
one's own, and no political mileage could be made by so doing.
Unlawful immigrants, however, often are
of a different hue, speak a different language, and do different
things. It is easy for the home team to generalize broadly from the
bad conduct of any of them. Often some at least semi-plausible story
can be told to blame them for whatever evils there be. Globalization
and productivity orchestrated in the interest of profit for a
smallish owner class predictably reduce the prospects of a wide swath
of middle income groups below what they had projected for themselves.
One might blame the owners, the system,
human nature, or the will of an omnipotent God. All these have had
their historical day, but blaming the other has been the
recurrent favorite. If you were searching for an attractive
other-candidate to galvanize an electorate, especially a low
information electorate, the unlawful immigrant would seem nearly
ideal.
This, I think, is the reason that so
many, so important, politicians simultaneously support strong
enforcement of immigration law and weak enforcement of tax law. It is
a reason in the sense of an explanation; not of a
justification.
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