Comprehensive Immigration Reform: Picking Up Where We Left Off, Part One

In our January issue we announced our 2013 Immigration Project. The project is a follow-up to the 2008 University of Nebraska immigration study posted on our website. In our February issue we introduced our readers to ImmigrationWorks USA. With this issue we begin a two-part series on immigration reform by Tamar Jacoby, the director of that organization. Next month, in addition to the final part of her essay, we shall present a summary of our Feb. 15 community roundtable discussion held in Crete, Neb. Once again our thanks goes out to the Robert and Ardis James Family Foundation for their generous support of this project.

By Tamar Jacoby

No one knows who invented the term, but sometime in 2003 lawmakers and advocates in Washington began talking about what they called “comprehensive immigration reform.” The first bills were sketchy—more concept papers than workable legislation. Then in late 2004 staffers from four Hill offices—Sens. Edward Kennedy (D-MA) and John McCain (R-AZ), Reps. Jeff Flake (R-AZ) and Luis Gutierrez (D-IL)—went into a back room and emerged six months later with the legislation that became known as McCain-Kennedy: in many ways the blueprint for all comprehensive reform bills that have been considered since.

What exactly was included in a comprehensive package went through innumerable changes as version after version was proposed in Congress between 2005 and 2010. As with any legislation, the details were critically important: a few small choices could make or break a measure politically—and also make the difference between a bill that worked to solve the problem and one that did not, as the 1986 Immigration Reform and Control Act had not solved it two decades before. But the essence of comprehensive reform—what supporters sometimes call the architecture—remained largely consistent through the years, and it is still the starting point for any serious discussion of what would constitute a meaningful immigration overhaul.

This architecture consisted of three pillars: enforcement, legalization and worker visas. In the eyes of most reformers, these were three moving parts of a single engine—each indispensable to the functioning of the others and of the machine as a whole.

Pillar One—Enforcement

For many Americans, the most important part of the proposal was enforcement, both on the border and in the workplace. The events of 9/11 crystallized a public consensus that had been forming for more than a decade of seemingly unlimited illegal entry across the southern frontier: it was time to get control. And all the bills proposed in the early 2000s included extensive measures aimed at securing the border.

Though more than double the number on duty just a decade before, 10,000 Border Patrol agents no longer seemed adequate to monitor 2,000 miles of open frontier. The stretches of border where a string of barbed wire or no marking at all had long sufficed no longer seemed acceptable—voters wanted these gaps taken in hand, whether with a physical barrier or more manpower. More modern technology was part of the package—cameras, sensors, airborne drones. So was a tougher attitude toward illegality and stiffer punishments across the board. True or not, as the public saw things, the government had been inept or looking the other way for decades—how otherwise could millions of poor, uneducated illegal immigrants have managed simply to walk across the border? And the first promise of comprehensive reform was to end that charade with whatever policing and other tools were necessary, both on the border and in the interior.

In the workplace. Equally important and part of the same mandate was worksite enforcement. Recognizing that most unauthorized immigrants came across the border looking for work, the 1986 Immigration Reform and Control Act had made it illegal for U.S. employers to “knowingly” hire them. IRCA introduced an array of measures—reporting requirements, financial and other penalties—to support the new ban. But the statute failed to create any means for businesses to determine if their employees were legal or not—no work authorization card, no computerized government database, not even a telephone help line. And after a proliferation of inexpensive forged identity documents hit the black market in the early 1990s, the immigration service all but gave up trying to make the worksite prohibition stick.

By 2004 worksite infractions were the service’s lowest enforcement priority. That year, agents sent out exactly three notices to noncompliant employers. But in fact most immigration policy experts agree: far more than the border, the worksite is the place to effect meaningful control. That’s where unauthorized immigration pays off, for the immigrant and the employer, and any muscle applied there will go much further than a comparable effort on the border. Lawmakers on both sides of the aisle understand that the key to controlling illegal immigration is creating a means to verify the identities and immigration status of new hires. And every comprehensive proposal of the past decade has mandated some version of the program now known as E-Verify, a government-run, Web-based system that allows employers to confirm the identities and work eligibility of new employees.

New developments. Thinking about enforcement has evolved somewhat since the debate about comprehensive

reform began a decade ago. Lawmakers continue to develop new tools—and abandon others. E-Verify has improved dramatically. As recently as 2006 error rates exceeded 10 percent; today, according to the Department of Homeland Security, fewer than 1 percent of authorized workers receive an inaccurate response. A full one-third of the states require some or all employers to enroll in the program, and many companies that have—particularly larger businesses with fully staffed human resources departments—say they are comfortable using the system and grateful for the added certainty it provides.

Border security is also more sophisticated. One of the most effective measures introduced in the last few years: it turns out that even slightly more stringent prosecution for illegal entry—the possibility of a night in jail or a hearing before a judge—pays big dividends in deterring would-be violators. Among the biggest enforcement failures: the multibillion dollar virtual fence, known as SBInet, contracted out to Boeing in 2006 and cancelled abruptly in early 2011.

Yet another new technology option, not yet tested but popular with both Democratic and Republican lawmakers: a biometric work authorization card to be used in concert with government databases to create a national system of foolproof employee verification.

Some of this new technology will be controversial—expensive and disconcerting to many Americans. But the basics of what needs to be done to enhance enforcement, both on the border and in the workplace, have been understood and largely agreed upon for many years. What’s disputed is whether enforcement alone will solve the problem, bringing the border under control and ending illegal immigration. Supporters of comprehensive reform, liberal and conservative, agree—it will not.

Pillar Two—An Answer for the Unauthorized

The second and most controversial pillar of comprehensive reform is its proposal for the millions of unauthorized immigrants already living and working in the U.S.

To reform opponents, any effort to accommodate this group is amnesty: sanction for their illegal entry and worse, an open invitation to millions of others like them who would breach our borders in the future—an unmistakable signal that we will look the other way. Many if not most reform proponents also oppose amnesty: what most argue for is giving violators of what they see as bad or unrealistic law a chance to earn restitution.

For some supporters, this is a matter of compassion; for others, simple pragmatism. After all, no matter what your political values, the status quo is unacceptable. Eleven million people living among us but not part of our society are a mockery of the law, a festering security risk and a violation of our most basic democratic values. Deporting a group this size—or even a substantial portion of it—is out of the question. If the cost, estimated in the hundreds of billions of dollars, didn’t stop us, the media images soon would.

In recent years reform opponents have been advancing a third option: what they call “attrition through enforcement”—cracking down so harshly with state and federal enforcement measures that unauthorized immigrants leave the country voluntarily. This approach has been implemented in several states, including Arizona and Alabama—and many immigrants have fled, with severe consequences for the local economy. But even in Arizona and Alabama, the effects of attrition through enforcement have been limited. Many unauthorized immigrants have lived in the U.S. for more than a decade. They’re married to Americans, have U.S.-citizen children, own homes or businesses in the U.S. and are not likely to leave, even under sustained pressure.

Remaining questions. As with the other two pillars of comprehensive reform, significant questions remain about how to approach the 11 million. Proponents differ among themselves. Is the ultimate goal for the unauthorized immigrants in the U.S. citizenship or merely legalization? What should be required of those making the transition—what combination of learning English, working, paying taxes, obeying the law and how big a fine? How long should they be required to wait in order to first accommodate other would-be immigrants who made a different choice—who applied for visas years ago and are waiting patiently outside the country in a lawful queue? Should all the unauthorized in the U.S. be eligible and all on the same conditions? Or should young people brought to U.S. illegally as children be given an easier path?

Polls showed widespread support for President Obama’s June 2012 memo granting work permits to many of these young people, known as “Dreamers,” after the bipartisan DREAM Act first considered in Congress in 2001. Several leading Republicans—including presidential candidate Mitt Romney and Florida Senator Marco Rubio—have also floated proposals to provide relief to Dreamers. As of December 2012, some 400,000 young people have applied to take advantage of the Obama order.

At the high point of the last immigration debate, in 2006 and 2007, even conservative reform proponents favored citizenship for all or most of the 11 million, and many advocates still consider anything less a travesty.

The second part of this series, in our April 2013 issue, will discuss the third pillar of comprehensive immigration reform, fixing the system so it works for the future, and the concepts of working in incremental legislative steps versus one legislative package for the solution.

Immigration in Nebraska

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