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Bordering On Folly—A Commentary by Peter H. Schuck

The following commentary was published in The American Lawyer on October 1, 2007.

Bordering On Folly
By Peter H. Schuck

Immigration reform has become the "third rail of American politics"-a dubious distinction previously reserved for Social Security reform. Indeed, immigration reform now seems even more lethal. After all, Senator Robert Dole, a leading architect of a Social Security reform compromise in 1983, survived to be his party's vice-presidential candidate in 1996. In contrast, the meltdown of comprehensive immigration legislation in June may have ended the presidential hopes of its leading Republican proponent, Senator John McCain.

Immigration reform failed in part because of its comprehensiveness. Sometimes, comprehensive legislative packages can be used to logroll a winning coalition among disparate groups with few other interests in common. Here, however, this strategy backfired, welding critics of particular pieces into a unified force that defeated the entire package. Seldom have major politicians invested so much scarce political capital for so many years with so little to show for it. The big losers include not just McCain but President Bush, who was in the highly unusual position of pressing for some "liberal" reforms opposed by most of his party, especially a law to legalize the undocumented.

The main loser, however, is the public interest. Although the illegal immigration problem cannot really be solved, it must be kept at a socially tolerable level. An estimated 12 million undocumented are now in the country, and their ranks swell each year by 200,000 or more. This growth persists with little regard to legal changes, U.S. business cycles, and periodic enforcement surges. (President Bush announced yet another crackdown in August). It is fair to say that every politically feasible approach to this problem has been tried at some time and found wanting. (The proposed wall along the border with Mexico, for instance, would be sturdier than earlier barriers, but it will never be high enough). Although this problem of the undocumented received the most public attention, the legislative failure also left unaddressed the need for more agricultural and higher-skill workers to meet a growing economy's labor shortages and the need to revamp the criteria for granting green cards.

As with any jerry-built reform package, each piece had numerous detractors. (This, of course, is why it failed.) Any viable compromise is certain to disappoint almost everyone, but the status quo seems even more unacceptable. To find a way forward, we must consider the four major elements of the failed proposal and the competing values that each embodies.

Stricter enforcement. The need for enhanced enforcement is the immigration policy equivalent of motherhood and apple pie-so this piece of the failed legislation will now be enacted separately and quickly. Businesses that hire many immigrants may give lip service to the "get tough" piety but in fact want to weaken employer sanctions. (This would take some doing; sanctions have been a dead letter until recently when the immigration agency, mindful of the need for credibility with Congress, decided to raid some large companies).

But stronger enforcement is much easier said than done. More border patrollers, better detection equipment, tougher employer sanctions, and a wall in certain areas can increase the costs of illegal migration but cannot erase the 700 percent wage differential that draws desperately poor migrants here. And until the law requires (and technology provides) a genuinely secure identity document and reliable employee verification data systems-neither is imminent-anyone who makes it past the border and stays out of trouble with the police can count on eluding deportation indefinitely. Nevertheless, no reform will pass without throwing much more technology, Border Patrol agents, and employer sanctions at the problem.

Legalization. Of the 12 million undocumented now in the U.S., roughly half crossed the border illegally while the other half entered on valid visas that either expired or were violated. (These categories are not fixed; many green card holders previously spent some time in illegal status, and vice-versa.) This is about twice the number of illegals here in 1986 when Congress last addressed this problem comprehensively. Then, it enacted sanctions on employers hiring unauthorized workers and legalized 2.7 million of those here illegally since 1982.

In truth, only a small fraction of these 12 million will ever be deported. (The number of formal removals and "voluntary departures" has never exceeded 1.25 million a year, and the cost of deporting all the undocumented is conservatively estimated at $200 billion over five years). The failed legislation recognized this reality by offering a new "earned legalization" program to those already working in the U.S. illegally. But beyond agreeing on this broad principle, Congress was bitterly divided over every element of the program's design: the number of participants and the conditions for eligibility, the requisite period of illegal residence, a "touchback" provision requiring them to return to and live in their home countries before reentering the U.S., the status of their family members, payment of a fine, a path to citizenship, the differential treatment of undocumented farm workers, special status for undocumented youths who graduate from high school or join the military, and many more.

With so many program variables in play (and so many of them matters of "more or less"), one might have expected a compromise to be reached, but many conservatives adamantly opposed any amnesty (their pejorative term for legalization)-at least until the borders were secured through enhanced enforcement. It would mock the rule of law, they argued, by rewarding illegality. It would encourage new unauthorized migration by workers hoping for a future amnesty. (Remember the 1986 law?) It would tie up an already feckless immigration bureaucracy for years, stalling enforcement. It would be unfair to would-be immigrants who had already spent years waiting on the legal queue. And-this, sotto voce-it would eventually create an army of new Democratic-leaning voters.

But a legalization program is desperately needed, and it cannot be deferred until the border is "secure," for one simple reason. Depending on how border security is defined and measured, that halcyon day may never be reached. Meanwhile, the undocumented live in a legal limbo in which they are at once pursued, countenanced, subsidized, reviled, protected, and subjected to exploitation. It is not beyond the wit of Congress to design a program that can improve on this incoherent and hypocritical status quo. Difficult tradeoffs, of course, are inevitable, given the complex incentives, conflicting moral judgments, uncertain cost-benefit calculations, and manifest institutional limitations. But the perfect cannot be allowed to be the enemy of the better (if not the good).

Guest workers. It makes no sense for the U.S. to deny our economy temporary foreign workers (H-1B's) who possess IT and other valuable skills that are in high demand and short supply. These workers contribute to more efficient production and higher growth-a fact that cuts little ice among American workers who compete for those same jobs-yet the limited H-1B visa allotment (now 65,000) has been exhausted almost immediately in recent years. The failed legislation would have greatly increased the number of such visas, although still not to the levels (195,000) issued before the dot-com bubble burst.

Low-skill immigration, however, is more controversial. It seems clear that few American workers are willing to take the low-paying, physically demanding, dirty agricultural jobs that foreign workers eagerly perform. Growers claim that they cannot offer better work conditions and still remain competitive in a globalizing world of low-cost producers. Although farmworker unions sometimes dispute this, even they have come to favor importing more workers-so long as the immigrants can be organized and do not undercut union-negotiated wages and working conditions. But agreement ends here, in part because many of the 46,000 workers (in 2006) in the current temporary agricultural guest worker programs decide to remain more or less permanently (with periodic returns home). They go into illegal status and elude detection.

The tendency of guest workers to remain in the U.S. raises many contentious issues for any new program. How long should they be allowed to stay, and how can they be forced to go home at the end of that period? How often can they return to U.S. jobs? Can they bring their families? Can they move into other industries? What documentation should be required of participating employers and workers? What health and housing benefits must the growers provide? Should they be given a path to eventual citizenship, and if so, under what conditions? How can we ensure that adequate wages and conditions are provided and that American workers are not adversely affected?

Government lawyers and program planners can attempt to answer these questions, of course, but in the face of powerful labor market pressures, their answers will often be unrealistic and unenforceable. Politically, the growers are very influential and can always invoke the telegenic spectre of unharvested crops left in the fields to rot while so many unfortunates in the world are starving. Practically, sowing, cultivating, and harvesting is so time-sensitive, and the relevant immigration and labor bureaucracies so slow-moving, that existing programs work very poorly. The proposed legislation would have addressed some of these problems (for example by speeding up the visa approval process) but not others. On this piece, Congress will surely try again.

Permanent resident admissions. In 2006, the U.S. admitted 1.26 million immigrants for permanent residence, the largest number since 1991. Of these, about 65 percent were already living here in illegal or temporary legal status. In a pattern established by the immigration statute enacted more than 40 years ago, the great majority of these (63 percent) received green cards because of their family ties to American citizens or permanent residents, while only a small share (12 percent) were employment-based, admitted only after qualifying under a notoriously cumbersome and politicized labor certification process. (The remainder consisted of refugees, asylees, "diversity" immigrants [see below], and some other special categories.)

This is unwise policy; a new, more skills-sensitive balance is needed. Indeed no other country that accepts large numbers of immigrants gives so little weight to employment skills as the U.S. does. Reuniting spouses and parents with minor children is desirable, of course, but current law also gives preference to more attenuated family ties, notably, the siblings, parents, and married children of adult citizens. We do not need to give them scarce green cards in order to maintain these ties in a world of Skype telephony, digital photography, easily obtained tourist visas, and inexpensive airfares. This rebalancing could be easier if we issued many more green cards than we do now. Only 1.26 million per year is too few for a nation of more than 300 million people. (This ratio is much lower than Canada's.) But whatever the number, setting priorities would remain essential.

In fact, the failed legislation would have made significant improvements in this direction. It would have cleared much of the enormous backlog of family-based visa petitions by adding 440,000 green cards a year for eight years, while capping the number for some of the more attenuated family categories. It would have eliminated the ill-conceived "diversity" program that now wastes 50,000 visas a year on people whose only claim to priority is that they won a lottery that can be entered by almost anyone from countries that have recently sent relatively few immigrants. (The program was designed by Senator Edward Kennedy and others to get special treatment for Irish people already here illegally.)

Most important, the failed legislation would have created a better permanent admissions system in which would-be immigrants would be awarded points for "merit" factors such as education; youth, English fluency; job skills and experience in high demand; and (above a certain point threshold) relatives in the U.S. Reasonable people can disagree about the appropriate factors, but this kind of system would constitute a great advance in both rationality and fairness. Canada, Australia, New Zealand, and the U.K. long ago established such merit point systems.

Immigration will shape the future of American society in numerous ways: demographic, economic, religious, ethnic, political, military, and cultural. Americans firmly believe that immigration has helped to make our country great. They also tend to admire those immigrants whom they know. Even so, we are sharply divided about how many immigrants of which categories are needed and about the conditions under which they should be admitted-and deported. Despite all of these divisions-perhaps because of them-the makings of a grand compromise exist. Simply saying "no" is a pout, not a policy.

Peter Schuck, a law professor at Yale, is the author most recently of Targeting in Social Programs (Brookings) and Meditations of a Militant Moderate (Rowman & Littlefield).