Monday, February 10, 2014

A Reality Based Conversation About Immigration

A week after announcing their guiding principles, House Republicans retreated and postponed their effort to reform the country’s immigration system. John Boehner, bless his heart, tried his best to blame Barack Obama for the GOP’s latest self-inflicted wound. To his credit, he managed to keep a straight face while declaring, "There's widespread doubt about whether this administration can be trusted to enforce our laws and it's going to be difficult to move any immigration legislation until that changes.” 


After Boehner’s press conference, the decision to postpone immigration reform was widely applauded as strategically smart by conservative pundits. Better not to expose divisions within the GOP and distract voters from the failures of ObamaCare; it is better to wait until next year.

However, Republicans have been divided over immigration for some time now; so why did the party leadership bother to announce they were going to push for immigration reform in the first place? And what will change next year that will make reform possible? Obama will still be president. Will House Republicans suddenly trust him to enforce laws?

Anyone who has been following the immigration debate closely knows that the Republican retreat had nothing to do with Obama and everything to do with Capitol Hill being flooded with calls, emails and faxes opposing immigration reform. For the last several years, there has been a well organized opposition that has successfully blocked any effort to move forward on this issue. Unless the GOP is able to effectively counter their pernicious and unrealistic arguments, next year will be déjà vu all over again.

There are three key arguments immigration reform opponents have used to defeat legislation. The first argument is that illegal immigration is due to an unwillingness on the part of gutless politicians to enforce immigration laws. Despite the Obama administration deporting a record number of individuals, immigration reform opponents point to the fact that illegal immigration has not been completely eliminated as evidence that there is a lack of enforcement.


Back in the real world, we all know that just because the authorities do not apprehend everyone that violates a law or regulation it doesn’t mean that there is a lack of enforcement. Plenty of tax evaders are never caught by the IRS, does this mean that government is not enforcing tax laws? Of course not.

Generally, a high level of non-compliance is indicative that particular laws or regulations are not adequately addressing the situation on the ground; that the system is broken. We have illegal immigration because our current system is not flexible enough to accommodate our labor needs. Insisting that illegal immigration is due to a failure to enforce immigration laws is the equivalent of insisting that the problem with Prohibition was a lack of enforcement.  Doubling down on immigration enforcement is essentially doubling down on a failed immigration system.


Second, immigration reform opponents insist that the border must be completely secured before the problem can be addressed. This approach will only result in holding immigration reform hostage to unrealistic expectations. Not even the Berlin Wall was able to keep people from crossing borders. In any case, there is no law or regulation that enjoys complete compliance. Saying that we must first end all illegal immigration before we can reform our laws is the same as saying that we can only move forward with tax reform after we have ended all tax evasion.

Third, and perhaps the most effective talking point that immigration reform opponents use, is the argument that any form of amnesty undermines the rule of law. That anything short of complete enforcement will lead to chaos and social breakdown. Pure nonsense. Amnesty is a mechanism perfectly consistent with the rule of law. Besides, if amnesty is intrinsically at odds with the rule of law, why did the founding fathers give the president the power  "to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment"?


Beginning with George Washington pardoning some participants in the Whiskey Rebellion, amnesty has been used several times in our history. After the Civil War, former Confederates were not prosecuted for treason and instead were given amnesty. Did the country fall apart?  In the 1970s, Vietnam war draft evaders were given unconditional pardons. Did the country cease to exist?  Richard Nixon was pardoned. Did the rule of law end in America? Amnesty, administrative discretion are mechanisms used to rectify situations where pursuing full enforcement is a worse option. In a sense, they serve as legal reset buttons. 

In 2011, the IRS announced a voluntary program allowing employers to reclassify their workers and "obtain substantial relief from federal payroll taxes they may have owed for the past, if they prospectively treat workers as employees." Another series of IRS amnesty programs "offered reduced penalties and no jail time to people who voluntarily disclosed assets they were hiding overseas" and allowed the government to recover billions in lost revenue. Yet, I don't recall talk radio ranting that the IRS was undermining the rule of law.
Speaking of talk radio, Rush Limbaugh also has personally benefited from amnesty. He was able to avoid jail time and criminal charges by striking a deal with prosecutors. Perhaps, the next time Mr. Limbaugh takes to the microphone to decry plans to allow undocumented immigrants to pay a fine and avoid deportation, he should explain why his amnesty deal was good for America.

Reforming our immigration system should be focused on determining what policies are in the best interest of our country. Do reform proposals enhance or diminish our economic prosperity? Does legislation being considered address what is driving illegal immigration or creating a new set of problems? These are the questions that must be  addressed. We have already wasted too much time on specious arguments.

Last updated: 02/12/2014...