Conservative critics of the Gang of Eight’s immigration-reform bill worry that the bill’s Republican backers, well meaning as they might be, are putting politics before policy by letting their desire to win over Hispanic voters blind them to what’s actually in the bill. Here are five major concerns these critics have identified:
Those favoring an “enforcement first” approach to immigration reform — 68 percent of registered voters, and 66 percent of Democrats, according to a recent Fox News poll — are bound to be disappointed by what the bill has to offer.
The only requirement for triggering a pathway to citizenship for immigrants who are here illegally is that Department of Homeland Security Secretary Janet Napolitano must submit a plan “to achieve and maintain effective control in high risk border sectors along the Southern Border.” The bill defines “effective control” as “persistent surveillance” and a 90 percent apprehension rate at three out of nine total border sectors. Supporters of the bill often cite this figure of 90 percent. However, as Secretary Napolitano indicated during congressional testimony last week, the true apprehension rate would be almost impossible to determine accurately, because there is no reliable way to measure the total number of illegal border crossings. Napolitano told Senator Ted Cruz (R., Texas) that DHS would focus instead on the overall “trend” of border crossings, which Cruz dismissed as “an amorphous, multi-factored, subjective test.”
The legislation allows the secretary to develop a “fencing strategy” for border security, but nothing in the bill requires the actual construction of any new fencing. Secretary Napolitano suggested that DHS would rather rely on alternative methods, such as drone surveillance. “If we have our druthers, we would not so designate a fence fund,” she said.
The bill does contain a backup trigger — the creation of a “Southern Border Security Commission” to make additional recommendations if the initial DHS plan does not succeed. However, that is all the new commission would be authorized to do: make recommendations. Furthermore, the bill gives the DHS secretary sole discretion to determine whether or not the initial plan has been “substantially” implemented and completed.
The secretary would also be given considerable leeway in deciding how strictly to enforce the law in the future. She would be able to accept an otherwise ineligible candidate for legal status, for example, or she could decline to deport an immigrant, if she decided it would be in the “public interest” or would prevent a “hardship” to the immigrant or his immediate family members. However, the legislation does not specifically define the meaning of “public interest” or “hardship.”
Critics of the bill are questioning the potential burden to taxpayers that could result from legalizing significant numbers of illegal immigrants who would qualify for “public charge” status. The term “public charge” does not appear once in the text of the Gang of Eight’s legislation. It appears indirectly, however, via reference to a section — 212(a), paragraph (4) — of the Immigration and Nationality Act of 1952, which deemed “inadmissible” any immigrant who is considered “likely at any time to become a public charge.”
The U.S. Citizenship and Immigration Services defines “public charge” as any individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” For the purpose of determining eligibility to register for provisional legal status — the first step on the pathway to citizenship — the Gang’s bill states explicitly that section 212(a), paragraph (4) of the Immigration and Nationality Act “shall not apply.”
The notion of forcing illegal immigrants to pay “back taxes” as a condition for legalization has been a key element of the debate over reform. Some proponents of the Gang’s legislation have argued that this back-taxes requirement proves that the bill is not offering pure “amnesty.” Here’s the catch: The Gang’s bill does not strictly require the payment of back taxes at all; it merely requires that current illegal immigrants pay “any applicable federal tax liability,” defined as “all Federal income taxes assessed.” Taxes “assessed” refers to liabilities that have been officially recorded by the IRS, whether by way of an official tax filing or an IRS audit. But the “off-the-books” nature of illegal immigration means it is highly unlikely that either scenario would apply to those seeking legal status. Furthermore, the bill does not require applicants for legal status to submit tax-specific information, such as employment history or wages earned, to either the IRS or DHS.
Politico described the Gang of Eight negotiations surrounding the back-tax requirement as follows:
Negotiators had to choose between a hard-line approach favored by Republicans, like Sen. John McCain (R-Ariz.), that would have required immigrants and employers to painstakingly piece together a tax history so the government could collect what is owed and a less burdensome option of focusing on people who already have a past-due bill with the Internal Revenue Service. They chose the milder approach and punted the details to the Treasury Department and IRS to hash out down the road.
“We’ll leave that up to the IRS to figure how we do it,” Senator Jeff Flake (R., Ariz.), a member of the Gang, told Politico. This is probably not the most effective pitch to win over skeptical conservatives.
It is often assumed that a requirement to learn English will be a necessary component of any pathway to citizenship for illegal immigrants; this is a concern particularly among those who consider assimilation of the newly legalized population to be a priority. However, the Gang’s legislation does not include a strict language requirement. The bill refers to current law, which requires applicants for citizenship to have “an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language.”
But even if an immigrant does not meet that standard, he or she can qualify to become a legal permanent resident if, according to the text of the bill, the applicant “is satisfactorily pursuing a course of study, pursuant to standards established by the Secretary of Education, in consultation with the Secretary, to achieve an understanding of English.”
Backers of the Gang’s bill have stressed the need not only to reform the illegal-immigration system, but also to reform legal immigration policy by transitioning to a more “merit-based” system, which would prioritize high-skilled workers. The bill takes steps in this direction, but critics say it has the potential to cause a massive influx of low-skilled workers in the coming years via chain migration.
For example, the bill would ultimately provide visas for the children and spouses of newly legalized immigrants, regardless of skill, and gives the DHS secretary considerable discretion to make it easier for family members to immigrate and achieve legal status, even if they have been recently deported or have committed fraud on their applications for admissions. Expansion of the number of visas for guest workers and agricultural workers would also increase the population of low-skilled workers. And according to a recent Fox News poll, a majority of American voters (55 percent) think all types of legal immigration should be reduced.
Conservative lawmakers opposed to the Gang’s proposed legislation promise to continue raising these concerns with their colleagues and with the American people so that, at the very least, Congress won’t rush to pass complex, highly consequential legislation without knowing what’s in it.
— Andrew Stiles is a political reporter for National Review Online.