March 7, 2009 | Commentary on Immigration
Openly supporting amnesty for illegal immigrants may still be a loser. In ever-adaptable Washington, the latest approach is, "Let's do it, but not talk about it."
Under its new secretary, the Department of Homeland Security (DHS) seems correctly poised to deal with Mexican militants in drug cartels and thereby slow the flow of illegal border crossings. The flip side is that deportation enforcement may wane against those who have already entered the U.S. unless they commit new and serious criminal acts.
That becomes amnesty by non-enforcement, even though the same immigration laws remain on the books.
Here is one very possible goal of the Obama administration that can be deduced from their actions and appointments: Only one side of illegal employment transactions is targeted, as employers who knowingly hire illegals are prosecuted but the illegal workers escape any consequences. And those companies would have an out: So long as they pay "good" wages to the illegal workers, companies would get a pass.
Rather than ask Congress to change the laws, the Obama Administration can do this by changing how laws are interpreted and enforced. That avoids headlines; Members of Congress avoid messy debates; and phone lines aren't clogged with calls from angry citizens (as they were during the 2007 debate over "comprehensive immigration reform").
A key signal is that DHS Secretary Janet Napolitano has tapped amnesty advocate Esther Olavarria to head DHS policy operations as a deputy assistant secretary. Olavarria spent 10 years as chief counsel to Senator Ted Kennedy (D, Mass.) for immigration issues, then moved over to the Center for American Progress, a liberal think tank. It's been reported that she drafted the Kennedy-McCain pro-amnesty legislation.
"Esther has been a real mover and a shaker in the pro-amnesty movement," says law professor Kris Kobach of the University of Missouri-Kansas City, who was chief immigration advisor to former Attorney General John Ashcroft. Kobach adds that her nomination "sends a pretty powerful signal" that the Obama Administration will pursue some sort of amnesty program.
Another guiding light for Obama's immigration policies may be the Migration Policy Institute. MPI's new paper, "DHS and immigration: Taking Stock and Correcting Course," outlines the scenario described above, calling for:
In other words, so long as they pay illegals the same as legal workers, employers will be allowed to skate by, and their violations will be overlooked. The illegal workers get amnesty due to non-enforcement.
MPI's position parallels Napolitano's. Rather than focus on those who "employ" illegal workers, she testified at a Congressional hearing, she wants to focus on employers who "exploit" illegal workers.
As MPI explains it, "Employees should be referred for criminal prosecution only in cases that involve more than commonplace immigration violations." With 11 million or so illegal immigrants, aren't all their violations now "commonplace?"
Napolitano also showed signs of following the MPI model when she criticized her own agency for its Feb. 24th raid that arrested 28 illegal aliens at a Bellingham, Washington, business. She promised to "get to the bottom" of why the raid occurred. A White House spokesman commented, "These raids are not a long-term solution." When campaigning, Barack Obama labeled them "ineffective."
Yet the increase of worksite arrests, plus stronger local and state enforcement and the economic downturn, last year combined to reduce America's illegal population by an estimated 1 million or more.
Border enforcement, however, is promised a higher priority at the new DHS. The Secretary has announced her intent to reallocate more manpower along the Mexican border because of rising drug-related violence and gun smuggling. "It's important to recognize that this is initially a civilian law enforcement issue," Napolitano said. "We're not talking about militarizing the border at this point. That would be a very far-off contingency at this point."
But non-violent border incursions may be treated differently. MPI recommends that along the border, "DHS and the relevant US Attorneys should suspend "zero-tolerance" prosecution programs . . . pending a thorough review (by DHS and DOJ) of whether these programs deter illegal immigration across the entire border and prevent the investigation and prosecution of more serious crimes"
The Obama Administration's attitude will be found less in its rhetoric and more in what it actually does about border security, workplace enforcement, and key programs known as E-Verify, Real ID and 287(g). Napolitano says all of these are being "re-visited."
E-Verify is the computer system that lets employers check job applicants against government databases to spot both illegals and phony Social Security numbers. The program's authority expires unless Congress and the Administration renew it in their omnibus spending bill. It's one mechanism that MPI approves, stating, "Mandatory employer verification must be at the center of legislation to combat illegal immigration. Until such legislation is enacted, the administration should support reauthorization of the E-Verify employment verification system and expand its use as a voluntary program." Yet groups such as the U.S. Chamber of Commerce have opposed this common-sense system and sued to stop it. The Obama Administration has delayed a Bush Administration requirement that all federal contractors must use E-Verify.
Real ID is the federal requirement setting minimum security standards for state IDs, like drivers licenses. As the Heritage Foundation's Dr. James Carafano describes it, "Real ID is a sensible protection against identify fraud." Its requirements deter terrorist access to airports and other areas and make it more difficult for illegal aliens to use phony ID. Real ID has been unpopular with several states and governors, including Napolitano, who as Arizona governor signed a state law prohibiting its enforcement there. As DHS secretary, she says she wants to find a more "flexible" approach.
287(g) is a successful inter-agency program in which DHS partners with state and local law enforcement agencies to enforce federal immigration laws. The MPI design calls for limiting 287(g), stating, "ICE should not enter into agreements that authorize local police to check the immigration status of persons in need of their assistance or who are assisting them. MPI calls for ending the local law enforcement practices of "routinely or randomly checking the immigration status of persons who have not been arrested, or are not in police custody."
Just as those who sneak across borders do so stealthily, the Obama Administration may change America's immigration policies quietly but significantly. Following public outcry against President Bush's immigration proposal, his DHS Secretary Michael Chertoff admirably set out to enforce the laws rather than change or ignore them. Ironically, those concerned over illegal immigration may see the last part of the Bush years as "the good old days."
Ernest Istook is recovering from serving 14 years in Congress and is now a distinguished fellow at The Heritage Foundation.
First Appeared in Human Events