May 16, 2006 | WebMemo on Immigration
This week, the Senate will begin debating "The Comprehensive Immigration Reform Act of 2006" (S.2611). In a speech yesterday evening, the President outlined his own ideas for immigration reform. However, neither the President's outline nor the Senate plan provides the essential security components needed to stem the flow of illegal South-North migration. Though the Senate plan addresses many of the President's concerns, from increasing the number border agents to creating border security grants, it needs significant changes before it represents the comprehensive approach required to dramatically and permanently decrease illegal border crossing and unlawful presence in the United States.
The Legislation America Needs
Immigration and border security legislation is essential, but it must address all the essential policies that make America a competitive, free, and safe nation. The right bill would encourage economic growth, enrich civil society, and enhance national security. That requires long-term solutions to managing South-North migration. The only practical answer is a comprehensive plan that does three things:
Legislation that does anything less will not meet the needs of the American people. Unfortunately, the Senate's immigration reform plan does not measure up to this standard because it does not provide long-term security solutions that are credible, practical, and affordable.
Amnesty Undercuts Credibility
Deterrence is an essential component of security, but the Senate plan would undermine deterrence. Provisions in the bill provide for the "legalization" of individuals unlawfully present in the United States for over five years. This amounts to a grant of amnesty to millions.
Wide-scale amnesty undermines the credibility of the rule of law, encouraging others to illegally cross the border in the hopes of receiving similar treatment. This, in fact, was the result of the Immigration Reform and Control Act (IRCA) of 1986. IRCA granted amnesty to 2.7 million individuals. The ranks of those illegally in the United States swelled over the next 20 years to almost five times that number.
There are also significant problem with this specific amnesty offer. Individuals who have committed felonies, filed fraudulent amnesty applications, and have already been ordered deported may still qualify to remain legally in the United States. In addition, the proposed law states that any individual who makes a prima facie case that he is eligible for legalization cannot be deported until his status is adjudicated. Equally troubling, individuals who have been unlawfully present in the U.S. for less than two years can apply for the bill's proposed guest worker status without leaving the country. This is tantamount to amnesty.
Legalization will make the challenge of controlling America's borders much more difficult. Conversely, refusing to grant amnesty will serve as a serious deterrent to those who hope to gain an advantage by ignoring U.S. laws, making the task of managing borders more realistic. A credible approach must not provide for the legalization of illegal aliens.
Practical Solutions Lacking
Restoring the integrity of the enforcement of immigration laws is vital to U.S. national security. In significant measure, enforcement has been undercut by the lack of cooperation among federal, state, and local law enforcement. Effective domestic counterterrorism operations and interstate criminal investigations require this cooperation. The Senate plan provides no practical means to address this problem.
The federal enforcement agencies lack the capacity to pursue aggressively all immigration violations that represent serious criminal and national security threats, much less effectively deter those who wish to defy U.S. immigration laws. The Department of Homeland Security (DHS) does not even have enough resources to deport criminal aliens released from prisons.
A practical solution would include provisions to strengthen and expand the programs authorized under Section 287(g) of the Immigration and Nationality Act (INA). This measure provides the legal authority for state and local enforcement to investigate, detain, and arrest aliens on civil and criminal grounds. The Senate plan would not promote this. It would require DHS to assume equipment, training, and overtime costs incurred by the states, but because there are no appropriations for this initiative, it would only make DHS less enthusiastic to carry out the program.
Effective legislation would require DHS to draft a strategy to implement Section 287(g) nationwide; to report to Congress each year on the progress of the program; and to allow states and cities to use homeland security grants to fund their participation, such as overtime costs for state and local law enforcement agents assisting in federal immigration enforcement investigations. As well, effective legislation would authorize sufficient funds for DHS to train and supervise up to 5,000 state and local law enforcement officers nationwide over the next two years.
Engaging state and local law enforcement through the Section 287(g) program is the only reasonable alternative to a sweeping unfunded mandate that would require all states to enforce immigration law-an impractical solution that violates the principles of federalism.
Border security cannot be achieved by just throwing money at the problem. The Senate planseeks to enhance border security by authorizing billions of dollars in new spending, for such items as thousands of border control agents, a new category of state grants, and an electronic verification system that all U.S. employers will have to use.
Many of the Senate's spending proposals are of questionable value. The United States has tripled border spending and manpower over the last ten years while border incursions have skyrocketed. The proposed "virtual border" that uses technology in addition to increasing manpower is an unnecessary duplication of resources. Wiser investments in both and ensuring that each component complements the others is a more affordable, and more sensible, approach.
An electronic verification system that all employers would be required to use would be costly and intrusive and may not work. It may also be unnecessary. Undocumented workers are not distributed uniformly throughout the economy. They are concentrated in a few sectors, such as construction, agriculture, and some service industries. Saddling the entire economy with the costs of total electronic verification makes no economic sense. Operation Vanguard, a 1999 initiative that targeted Nebraska meatpackers, proved that targeted enforcement does work and can be cost-effective. However, political will is necessary. Operation Vanguard failed to lead to similar enforcement actions because politicians beholden to the meatpacking industry blocked them. In addition, workplace enforcement mechanisms for targeted industries could benefit from a market-based approach that could capitalize on innovative and effective technology. Relying solely on law enforcement raids or an all-economy electronic verification system is not an efficient solution.
Similarly, creating another entitlement program for the states makes no sense. Homeland security grants have largely proven unproductive and inefficient and are used more often to supplant, not supplement, state spending or are wasted on unnecessary equipment. Grants for state initiatives of questionable utility may create the impression of being tough on border security, but they don't provide the best value for U.S. tax dollars.
The solution to better border security is not spending fortunes but instead creating an integrated set of border management systems that enhances and secures infrastructure at the border crossing points, institutes appropriate screening and inspection of high-risk cargo and people, maintains persistent surveillance, and provides actionable intelligence and responsive interdiction. This requires more than a virtual fence. Combining these instruments into effective border security requires more than integrating assets at the border and must include linking them to all activities involved in cross-border travel and transport, from issuing visas, passports, and overseas purchase orders to internal investigations and the detention and removal of unlawful persons. This is a "system of systems" approach to border security. Legislation should require DHS to undertake this approach and require specific and realistic milestones for its implementation. The Senate plan would not do this.
Solutions Still Needed
In his speech to the nation last night, the President outlined out an agenda includes large parts of the Senate plan: increased manpower and increased use of technology along the border and within the nation. But Congress should not move ahead on this agenda blindly; it should recognize that a comprehensive proposal for immigration and border security reform must include security provisions that are credible, practical, and affordable. The legislation must:
The Senate still has much work to do to give the nation the enforcement approach that it needs.
James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.