Magazine | May 20, 2013, Issue

The Rubio Amnesty

(AP Photo/Jacquelyn Martin)
It’s not what the senator promised, but he’s defending it anyway

When Mitt Romney lost last November, the Republican establishment decided that his moderately hawkish stance on immigration had been a major cause of his defeat. Never mind that his share of the Hispanic vote was within the margin of error of McCain’s 2008 share. Never mind the significant drop in white turnout. There is little elite constituency for a hawkish approach to immigration, and much elite support for lax enforcement and increased legal immigration (Romney actually supported the latter).

So the Republican establishment turns its hopeful eyes, once again, to so-called comprehensive immigration reform. The same senators who pushed such a bill in 2007, prominently including Republicans John McCain and Lindsey Graham and Democrat Chuck Schumer, are at it again. They have devised a plan that would ease the path to legality for illegal immigrants while making some gestures toward enforcement. But a new element this time around is Marco Rubio.

A tea-party favorite (and a favorite of this magazine) who wrested the senatorial nomination from GOP-establishment pick (now Democrat) Charlie Crist, he’s young, telegenic, and the son of Cuban immigrants. Rubio became part of the “Gang of Eight,” four Democrats and four Republicans negotiating a deal that sought to placate a dizzying array of interests, all seeking de facto unlimited immigration but each with a different set of specific concerns. The result of all this is S.744, a sprawling, 844-page measure legalizes most of the illegal population (plus many who were deported and are currently living abroad), promises tougher enforcement in the future, and hugely increases all forms of legal immigration, low- and high-skilled, temporary and permanent.

In advance of the release of the bill’s text, Rubio fearlessly and tirelessly made the case for it to conservatives. He was greeted by Rush Limbaugh, Mark Levin, and others as a friend and was afforded a respectful hearing as he made repeated assurances about the coming bill. It would guarantee tough enforcement, so we wouldn’t be having this same debate a decade from now about yet another wave of illegal settlers. The legalized population wouldn’t get green cards until certain strict “triggers” were met. There would be no special path to citizenship for them. They would have to pay their back taxes and a fine. They would not receive taxpayer-funded benefits. They’d be required to learn English.

Then we got to see the actual text of the legislation. Rubio’s promised provisions are absent. Regarding back taxes, for instance, the bill requires only that applicants “satisfy any applicable federal tax liability” that has previously been “assessed” by the IRS. But a tax is “assessed” only after a tax return has been submitted or after the IRS has conducted an audit. Since neither of those things happens with illegal immigrants working off the books, there aren’t any back taxes to be paid.

The fine for legalization is small — just $500 up front and $500 paid in installments, in return for lifetime legal access to the U.S. labor market. And while $500 can be a lot for an illegal immigrant, in a certain sense it isn’t a fine, since the money would go into a slush fund for DHS to dole out to groups such as La Raza, which are in turn to provide services for the very amnesty beneficiaries who paid the fines. (Conservative writer John Fonte has called this the Alinsky Fund.) Even such a modest penalty is absent for crooked employers. They get amnesty for free — amnesty from prosecution for knowing employment of illegal aliens, non-payment of wages, non-payment of payroll taxes, and facilitation of identity theft.

As for learning English, the language requirement applies only to already-amnestied immigrants seeking the upgrade to full green card, and even then, requires only enrollment in a class, not demonstration of actual proficiency (which is what is required for citizenship).

Moreover, the bill provides for a huge increase in legal immigration — and not just increased numbers but increased complexity, in a system already excessively complex. It has special provisions for guest workers, farm laborers, and foreign technology workers, doctors, and nurses, as well as retirees, entrepreneurs, and foreign students graduating with technical degrees. The Schumer-Rubio bill simply seeks to placate every interest group at the table by handing out more visas. Numbers USA has estimated the number of green cards that would be issued during the first decade of the bill’s operation at 33 million. About one-third of those would be illegal aliens receiving amnesty, so new immigration would go from about 1 million per year to 2 million.

#page# But it’s in the enforcement provisions that the gap between Rubio’s promises and the actual bill is most consequential.

Advocates of amnesty tout the best polls money can buy, claiming public backing for their goal. Yet setting aside the tendentious nature of most of the polling, even by ostensibly objective media organizations, there is considerable support for some kind of amnesty, if often half-hearted and mainly as a way to clear the decks and start fresh. But it’s predicated on ensuring that this will be the last such amnesty — that immigration security will be improved, so that another 11 million won’t sneak across the border or overstay visas.

This was the promise of the 1986 amnesty law, the Immigration Reform and Control Act. In a grand bargain of amnesty for enforcement, the amnesty came first, with 2.7 million people legalized within a few years. But the enforcement petered out as the political incentive to support it disappeared with the completion of the amnesty. It had gotten so bad by 2004 that only three employers in the entire country were fined that year for knowingly hiring illegal aliens.

Despite Rubio’s promise to have an enforcement system “that ensures we’re never here again with the situation that we face today,” the Schumer-Rubio bill sets up a replay of the 1986 scenario. Rubio stresses that none of the currently illegal immigrants will be able to get a green card until the enforcement benchmarks are met. But he seldom notes that virtually all illegal aliens would get a kind of green card lite within months of the bill’s signing. This “Registered Provisional Immigrant” status would provide work authorization, a legitimate Social Security account, a driver’s license, and travel papers — in other words, the amnesty is effectively granted up front. The only “trigger” for the government to begin the green-card-lite program is the submission to Congress by the Department of Homeland Security of a border-security plan and a fencing plan — of which DHS already has a full shelf.

But once all the illegal aliens are amnestied, working legally, and able to travel back home to display their new status, we’re told, the real work of enforcement will begin. The bill contains three enforcement objectives that must be met over the decade following its passage before the now-legal amnesty beneficiaries may upgrade from green card lite to a regular green card, which would allow them eventually to apply for citizenship: mandatory use of E-Verify, implementation of an exit-tracking system to identify visa overstayers, and securing the Mexican border. All are important goals — so important that it’s not clear why their completion has been held hostage to amnesty.

E-Verify is the free online system that allows an employer to check the legal status and identity of a new hire by verifying his name, Social Security number, and date of birth. It is currently voluntary but widely used, and making it a required part of the hiring process is an important part of turning off the magnet of jobs that attracts illegals. The Schumer-Rubio bill would indeed make the system mandatory (though, due to sloppy drafting, it seems to abolish E-Verify and require the development of an entirely new system). But it would be five years before all employers had to use it, and it could not be used to check on the existing work force, only new hires. This last part is a large loophole; one would think that deporting workers who didn’t qualify for amnesty would be an important aspect of enforcement. But the goal of this and other measures in the bill appears to be to shield non-qualifying illegal aliens so they can stay illegally and wait for the next amnesty.

#page# As for the exit-tracking system, it is important that we establish one, because perhaps 40 percent of the illegal population are visa overstayers, and if we don’t track who departs, we can’t know who has illegally remained. But the system provided for in the legislation would have to be in place only in airports and seaports, even though most foreign visitors cross land borders. What’s more, Congress already mandated an entry- and exit-tracking system at all border points — in 1996. It has reiterated that mandate five times since then. It takes chutzpah to offer as enforcement a seventh such mandate and a simultaneous provision of ten more years for its fulfillment.

Finally, securing the Mexican border. The benchmark given in the bill is called “effective control” and means surveillance of 100 percent of the border and apprehension of 90 percent of attempted infiltrators. This is absurdity many times over. You have to know the total number of attempted crossings to know that you got 90 percent of them, and as even DHS Secretary Janet Napolitano has pointed out, there is no way for the Border Patrol to know how many people it misses. This standard also applies only to “high risk” sectors, which turns out to mean just three of the nine sectors along the Mexican border.

If “effective control” of the selected portions of the border is not achieved within five years, Rubio has said, “it goes to a border commission made up of people that live and have to deal with the border and they will take care of that problem.” More nonsense. The bill’s “Southern Border Security Commission” would be made up of six Washington-appointed members (two by the president and four by congressional leaders), plus one from each southern border state (appointed by the governor), and it could do nothing but issue recommendations.

Moreover, the bill states that if, after ten years, “litigation or a force majeure” has prevented any of the conditions serving as enforcement triggers (E-Verify, exit controls, and border security) from being met, the legalized immigrants will be upgraded to green cards anyway. A Rubio spokesman called concern over this “hysterical,” but the ACLU has already made clear that it opposes the E-Verify mandate, and litigation over the 1986 amnesty ended just a few years ago.

In the words of Frank Sharry, a liberal supporter of the bill,  “The triggers are based on developing plans and spending money, not on reaching that effectiveness, which is really quite clever.”

And once the amnesty is safely out of the way, does anyone think Speaker Pelosi and President Clinton II (or President Bush III) won’t seek the watering down even of these triggers in order to get people their green cards faster?

With its Obamacare-style expanse and complexity, the bill contains much more than what is sketched above. Democrats packed it with as many loopholes and immigration-lawyer schemes as they thought they could get away with. Rubio’s staff, like most GOP Senate staff, are relative amateurs on immigration, while Schumer’s people are pros. This is how Ted Kennedy dominated immigration policy for so long. (The House GOP committee staff on immigration, on the other hand, are professionals with long experience.)

Opposition to the bill should be the obvious position for conservatives who care about immigration enforcement and don’t want to open the spigots even wider to low-skilled immigration. Whatever the discrepancies between Rubio’s assurances and the reality of the bill, though, he has now lashed himself to it. His convoluted justifications for various provisions suggest that he’s decided to do what he must to sell it. He’s made the laughable argument that the bill doesn’t give anything new to illegal immigrants because they can already return home and apply to come here legally. (This sounds a lot like what Mitt Romney called “self-deportation.”) He’s claimed that amnesty must precede enforcement because the enforcement measures would throw millions of illegals out of work, creating a humanitarian crisis. In fact, the three security triggers, if enacted on their own, would have only a gradual impact on the existing illegal population.

In the months leading up to the introduction of S.744, conservatives looked hopefully to Rubio as their representative on the Gang of Eight, someone who would make sure its plan didn’t turn out to be a call for de facto open borders. Early on, Rubio may well have seen that as his role. But he is now much less the conservative ambassador to the Gang of Eight than the Gang’s ambassador to conservatives.

– Mr. Krikorian is the 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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