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An immigration reform window opens—A Commentary by Peter H. Schuck

The following commentary was published in the Los Angeles Times on January 30, 2011.

An immigration reform window opens
By Peter H. Schuck

Reports of the death of immigration reform in the 112th Congress may be exaggerated. True, immigration politics are divisive and sometimes toxic, and Republicans don't want to enable President Obama to claim another legislative victory as he gears up for the 2012 election. Even so, the strands of effective reform are there, waiting to be knitted together into a grand bargain by political entrepreneurs.

Almost everyone accepts that our current approach to immigration needs fixing. And they also recognize that the problem is likely to get worse. Paradoxically, given our current economic troubles, now is the best time to tackle the problems, for several reasons.

First, notwithstanding the heated politics in Arizona and other border states, illegal immigration is down significantly since 2007, which creates a breathing period in which fears about job displacement may be somewhat less intense. As the economy improves and begins to generate more private-sector jobs, illegal migration likely will pick up as well, magnifying those fears and making compromise more difficult.

Second, a keystone of any compromise — enhanced border enforcement — is already occurring because of increased funding and technology. These developments cannot stem the flow of desperate foreign workers altogether, but they can allay some of the public anxiety about being overwhelmed by a flood (to use the usual illegal migration metaphor).

Third, many front-line states have recently enacted laws, still under constitutional challenge, designed to create the appearance, if not the reality, of greater control. Their proponents claim that they are needed only because congressional inaction has created an enforcement vacuum. These states, then, can be powerful lobbyists for a new compromise.

With the time ripe for action, here are six reforms that are both politically palatable (or as close to it as we're likely to get) and, taken together, comprehensive in their coverage.

More detention beds. Everyone recognizes that stricter border enforcement must be a central part of any politically feasible immigration reform package, which is why Congress and presidents of both parties have vastly increased the size of the Border Patrol in recent years. But the limiting factor for border enforcement is not manpower but facilities for detaining illegal migrants until they can be processed and deported. Once the limited detention capacity is reached, immigration authorities have no choice but to release migrants pending their actual removal. In practice, this almost assures that they will melt into the population and remain in the country indefinitely. More beds are something that more money can buy.

Deport more criminal immigrants. Although immigrants as a group are no more prone to crime than the general population, those who do commit violent and other serious crimes (not just drug possession and use) are especially dangerous and should be removed as soon as possible after their convictions. Everyone can agree on this, and indeed the federal government has been deporting more of them each year. Still, a very large number remain in our prisons, contributing to serious, even unconstitutional, overcrowding. The law should be changed to accelerate the deportation of more of them.

Fiscal federalism. States and localities today are groaning under the costs of educating, imprisoning, treating and rendering other services to illegal immigrants, yet the federal government — whose own long-standing enforcement failures account for these costs — reimburses only a trivial fraction of them (primarily for some incarceration costs). This creates the wrong enforcement incentives, is unfair to hard-pressed local governments and can readily be remedied by more generous federal transfers through block grants or other reimbursement programs.

Legalization. Even many enforcement hard-liners accept the need to offer legal status to many of the approximately 11 million illegal immigrants currently in the country. The real issues are the conditions for eligibility and the time frame. The DREAM Act, which would legalize young people with clean records who have completed high school in the United States or served in the military, would probably win enough conservative support to pass if Congress made certain conditions — such as long-term residency in the U.S. and honorable discharge — more rigorous. With DREAM in place, Congress could gradually turn to other relatively sympathetic categories, such as long-term residents with children who are citizens.

More skilled immigrants. The current law that limits U.S. employer access to the skilled workers they need perversely reduces our economic competitiveness, innovation and growth. Improving and enlarging the H-1B program for these workers should be a top priority, and the GAO recently issued a road map for doing so.

Seasonal agricultural guest workers. If American workers are unwilling to do the grueling farm labor that needs to be done, Congress should allow growers to recruit from abroad under fair wage and working conditions that will encourage workers to return home after the season. This is particularly urgent at a time of rising food prices and growing shortages throughout the world.

Any grand bargain on immigration reform must appeal to the major constituencies: state governments, employers, unions, amnesty advocates, growers and the general public. These reforms are within political reach if only our politicians have the will and skill to grasp them.

Peter H. Schuck teaches at Yale and New York University law schools. His most recent book is "Understanding America: The Anatomy of an Exceptional Nation," co-edited with James Q. Wilson.