Magazine | February 25, 2013, Issue

Amnesty Anew

A bad idea rises from the ashes

On consecutive days in January, two immigration proposals were put forward. The first was by Senators Chuck Schumer and Marco Rubio, representing the Gang of Eight — Democrats Schumer (N.Y.), Dick Durbin (Ill.), Robert Menendez (N.J.), and Michael Bennet (Colo.) and Republicans Rubio (Fla.), John McCain (Ariz.), Lindsey Graham (S.C.), and Jeff Flake (Ariz.). The second proposal was put forward by President Obama. The similarities between the proposals are more notable than the differences. As iterations of “comprehensive immigration reform,” both seek to overhaul the whole immigration system in one vast law, as Obamacare and Dodd-Frank did the health-care system and the banking industry, respectively.

Both proposals have three main parts: immediate amnesty for almost all illegal aliens, more effective enforcement of the law to prevent further illegal immigration, and increases in legal immigration. Both bills would certainly achieve the first and the third objectives, but its ability to achieve the second is questionable. Critics fear that an immigration measure along these lines would simply be a replay of the 1986 amnesty fiasco, when nearly 3 million illegal aliens were legalized but the promised enforcement never materialized, leading the population of illegal aliens to grow to its present size.

In the absence of actual legislative language, which won’t be introduced for weeks or months, it’s worth looking at the Schumer-Rubio proposal in more detail, especially since the president has said he’d rather see legislation from Congress than submit a detailed proposal himself.

The amnesty feature of the Schumer-Rubio plan would result in immediate “probationary” legal status for almost all illegal aliens. After applicants met certain requirements, their probationary status would be converted to formal legal residence (the green card), which would permit them to apply for citizenship, usually after five years.

But the various tough-sounding requirements in the Schumer-Rubio proposal are a sham. The version of them described for the press was as tough as they would get. All subsequent movement would be toward weakening them.

For instance, according to the proposal, the requirements that candidates for amnesty must meet to receive probationary legal status “will include passing a background check and settling their debt to society by paying a fine and back taxes.” In a later press conference, however, Schumer tacitly conceded the vacuity of the language about “settling their debt to society” when he noted that “on Day One of our bill, the people without status who are not criminals or security risks will be able to live and work here legally.” That means that illegal aliens would face no fine or requirement to pay back taxes before receiving their probationary status, which would allow them to receive a work permit, a Social Security number, a driver’s license, and the right to leave and reenter the U.S. freely.

The amnesty component of the Schumer-Rubio proposal includes the claim, lifted from earlier bills, that “individuals with probationary legal status will be required to go to the back of the line of prospective immigrants” and “will only receive a green card after every individual who is already waiting in line for a green card, at the time this legislation is enacted, has received their green card.” Of course, it’s of little consequence how long the green-card line is, since they can live and work here legally during their wait while those applying lawfully must wait abroad.

As for the enforcement provisions, the transition of probationary aliens to full green-card status would be tied to certain objectives. These include improved efforts to stop border infiltration and visa overstays. The proposal would also “increase the number of unmanned aerial vehicles and surveillance equipment, improve radio interoperability and increase the number of agents at and between ports of entry.”

But the frivolous nature of the enforcement objectives fairly jumps off the page when you read this: “Our legislation will require the completion of an entry-exit system that tracks whether all persons entering the United States on temporary visas via airports and seaports have left the country as required by law.” This is an important objective, since some 40 percent of the illegal population entered the country legally on a temporary visa and never left. Fences and drones are irrelevant to combating this kind of illegal immigration.

#page#Congress required “the completion of an entry-exit system” 17 years ago, in the wake of the first World Trade Center attack. It has reiterated this requirement five times since then, and the system is still not complete. So why is this presented as a trade-off for amnesty? Shouldn’t the existing requirement be met before we make a sweeping promise of amnesty? Moreover, the entry-exit system would be applied only to foreigners entering by air or sea, even though most who overstay their visas enter through land ports.

When would enforcement requirements be considered met, so that formerly illegal aliens could proceed to the green-card stage? Schumer-Rubio would “create a commission comprised of governors, attorneys general, and community leaders living along the Southwest border to monitor the progress of securing our border and to make a recommendation regarding when the bill’s security measures outlined in the legislation are completed.”

McCain has for years been pushing this debatable idea that people in the Southwest should have special say over a national problem. But within days of the proposal’s release, it was shown to be a gimmick. It came out that, in a pre-announcement conference call with leftist groups, Democrats had emphasized that the commission would not have a veto over the path to citizenship and that it was, in the words of a top open-borders lobbyist, “something that gives the Republicans a talking point.” Schumer later acknowledged publicly that Democrats were “not going to use [border patrol] as a barrier to prevent the 11 million [illegal aliens in the U.S.] from gaining a path to citizenship” and that the secretary of homeland security — that is, the White House — would make the final call.

Schumer-Rubio calls for “an effective employment verification system,” though its implementation is not one of the enforcement objectives that must be met before the plan for amnestied aliens to obtain full green-card status is implemented. What’s more, Schumer-Rubio carefully avoids referring to E-Verify, the free online system for checking the legal status of new hires. Its use is now voluntary, but making it an obligatory part of the hiring process is key to removing the magnet of jobs that attracts illegal immigrants in the first place. Schumer wants to replace the bird-in-the-hand E-Verify with a two-in-the-bush system that doesn’t exist but supposedly would be better. E-Verify is currently used to screen about one-third of new hires; canceling it and trying to replace it with something “better” would be disruptive and time-consuming, allowing millions more illegal aliens to settle here in the interim.

What would happen to those who didn’t qualify for amnesty? The proposal says that “individuals with a serious criminal background or others who pose a threat to our national security will be ineligible for legal status and subject to deportation,” but surely a background check wouldn’t be the only requirement. There would be a fee, and probably a  deadline, and possibly other criteria to be met. Many aliens would therefore be rejected, if they applied at all. Experience suggests that they would be able to continue living here illegally. An amnesty that doesn’t have as a priority the identification and removal of all who don’t qualify creates the nucleus of a new illegal population, as Doris Meissner, a former commissioner of the Immigration and Naturalization Service, recently observed of the 1986 amnesty.

As for the increase in legal immigration, the details are still being worked out among business interests, unions, and ethnic interest groups. Today’s annual admission of more than 1 million legal immigrants (green-card recipients) and perhaps 750,000 “temporary” workers (many of whom go on to get green cards) would be supplemented by the admission of more white-collar workers, more blue-collar workers, and more relatives of immigrants already here.

The increases would surely be enormous. The Schumer-Rubio proposal bemoans that so many people are on the waiting list for green cards. But considering that there are currently more than 4 million people who are waiting their turn (owing to numerical limits in the various categories of immigrants rather than to “backlogs” caused by bureaucratic lethargy), one might think this would mean doubling legal immigration for four years. (The spouses, parents, and minor children of U.S. citizens do not wait in this queue, since they are admitted without numerical limitation; the queue is for more distant relatives.)

#page#As problematic as 2 million immigrants a year would be, the real number would be higher and would not fall. One of the reasons there are “only” 4 million people on the waiting list is precisely that a wait is involved. If, as is foreseen in the Schumer-Rubio plan, we dramatically increased the number of visas, thereby shortening the wait, even more people would apply than do now, creating pressure for yet further increases. By increasing the supply of workers, such a system would also exert downward pressure on wages. This, combined with the likely eagerness for employment of workers newly admitted to this country, would increase the number of occupations considered “jobs Americans won’t do,” producing demands for yet more increases in the number of visas.

There is no practical limit to the number of people who want to move here. Contrary to claims that sources of immigration are drying up, Gallup reported last year that 150 million people would like to move to the United States. Ten percent of all people born in Mexico live here already. Millions apply for the visa lottery, whereby green cards are awarded at random to people from countries other than Mexico, China, India, the Philippines, and other leading sources of immigration to the United States. For 50,000 annual slots, there were 13.6 million applicants in 2010, 16.5 million in 2011, and 19.7 million in 2012.

The “future flow” of immigrants, to use the lobbyists’ shorthand, is key to understanding how amnesty supporters reconcile the risible nature of the enforcement specifics they offer with the promises of no further illegal immigration. The usually unspoken assumption is that their new, improved version of amnesty — whether the Schumer-Rubio plan, the president’s, or any other — won’t repeat the 1986 plan because every non-terrorist who wants to move here will be able to do so. A limit on immigration only “incentivizes illegal immigration,” as Schumer-Rubio puts it, and so getting rid of all limits on immigration would, by definition, eliminate the illegal-immigration problem and therefore the need for most enforcement.

That is the ground on which the immigration debate should really be held. If legality is the only problem, why shouldn’t all illegal aliens simply be amnestied and all immigration limits removed? No illegals, no problem. But in a society with a post-industrial, knowledge-based economy, a welfare state, and weakened assimilative institutions, mass immigration is harmful whether it is legal or not.

Reconfigured, the three pieces of the Schumer-Rubio plan could be the building blocks of sensible policy. Enforcement must happen up front, with no preconditions or tradeoffs — E-Verify, entry-exit tracking, systematic state and local cooperation with federal immigration authorities, aggressive measures against visa and green-card fraud. First these measures must all be in place, tested, staffed up, and, if legally challenged, given the imprimatur of our judiciary. Only then should the other two features of the package deal come into play: amnesty for the remaining non-criminal illegal aliens, in exchange for adjustments to the rate of legal immigration — deep, permanent cuts, not increases.

That won’t be the shape of this year’s debate, of course. We’ll hear a lot of pious talk about a nation of immigrants (“Give me your tired, your poor”), but the incompatibility of mass immigration with a modern society is a problem that can no longer be avoided.

– Mr. Krikorian is the executive director of the Center for Immigration Studies.

Mark Krikorian, a nationally recognized expert on immigration issues, has served as Executive Director of the Center for Immigration Studies (CIS) since 1995.

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