From its inception, the United States of America has recognized the vital importance of lawful immigration to the nation. Such immigration brings important economic and cultural benefits both to the United States and to the immigrants. Americans rightly incorporate into their lives and celebrate the values of America, including individual freedom, limited government, and free enterprise, and beckon others to join us. Lawful immigration greatly benefits both America and the lawful immigrants, while unlawful immigration presents challenges to America’s ability to protect its borders and preserve its sovereignty.
Welcoming Lawful Immigration. In 1776, the Declaration of Independence, in speaking of the tyranny the thirteen American colonies had suffered under King George III of Great Britain, said:
The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
The Declaration’s submission of facts about the king’s tyrannical conduct included that:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for the Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
After the representative of George III stated in the Treaty of Paris in September 3, 1783, that “His Brittanic Majesty acknowledges the said United States . . . to be free sovereign and independent states,” the victorious Revolutionary War commander in chief General George Washington wrote on December 2, 1783, to an association of Irish immigrants in New York City:
The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall wellcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.
When the delegates of the states met in Philadelphia in the summer of 1787 to draft the Constitution that conventions of the people of the several states later ratified, they included among the enumerated powers of the federal Congress the power “[t]o establish an uniform Rule of Naturalization,” which would set forth the conditions under which immigrants could become citizens of the United States. Thus, at its very beginning, the United States of America recognized the importance to the nation of lawful immigration.
America continues to recognize the vital importance of lawful immigration. As President Ronald Reagan said in 1986:
Since 1820, more than 52 million immigrants have come to the United States from all over the world. They have sought and found a new and better life for themselves and their children in this land of liberty and opportunity. The magnet that draws them is freedom and the beacon that guides them is hope. America offers liberty for all, encourages hope for betterment, and nurtures great expectations. In this free land a person can realize his dreams—going as far as talent and drive can carry him. In return America asks each of us to do our best, to work hard, to respect the law, to cherish human rights, and to strive for the common good.
The immigrants who have so enriched America include people from every race, creed, and ethnic background. Yet all have been drawn here by shared values and a deep love of freedom. Most brought with them few material goods. But with their hearts and minds and toil they have contributed mightily to the building of this great Nation and endowed us with the riches of their achievements. Their spirit continues to nourish our own love of freedom and opportunity.
In contrast to lawful immigration, which benefits America greatly, unlawful immigration challenges the ability of the United States to protect its borders and preserve its sovereignty.
Congress Should Proceed Carefully, Step-by-Step, Instead of with One-Size-Fits-All Comprehensive Legislation. The complexities involved in encouraging lawful immigration and deterring unlawful immigration call for a measured set of approaches tailored to a wide variety of immigration issues, rather than comprehensive, all-or-nothing, and one-size-fits-all legislation. Those approaches “can move forward on many fronts at the same time, focusing on some commonsense initiatives that begin to address the practical challenges of our immigration system.” The U.S. should reform its immigration system through a careful, step-by-step process that welcomes lawful immigrants, encourages their full participation in American life, and expands opportunity. The process also must prevent unlawful immigration, encourage respect for law, secure America’s borders, and preserve America’s sovereignty. The Heritage Foundation has described this step-by-step process for a problem-solving approach to immigration issues, such as reform of the lawful immigration system, visa reforms, lawful temporary worker arrangements, and strong border and interior enforcement.
The Congress of the United States has the power to determine by law whether and on what terms citizens of other countries may enter the United States. The Supreme Court has held that the power to admit or exclude such aliens is an incident of the sovereignty and independence of the United States. The Congress may exercise that power, by enactment of civil and criminal laws, and has done so. Despite U.S. efforts to enforce its laws, substantial numbers of aliens are unlawfully in the United States.
Congress Has Broad Power to Address both Lawful Immigration and Unlawful Immigration. Congress possesses plenary authority to regulate entry of aliens into the United States. In 1977, the Supreme Court said:
This Court has repeatedly emphasized that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Our cases “have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.”
Congress has broad authority to enforce the policies it sets by law on whether and on what conditions aliens may enter the United States. All civil or criminal proceedings must afford the requisite due process of law.
Amnesty Is Not the Answer to Unlawful Immigration. On occasion, proposals arise that would grant amnesty to aliens who have entered the country unlawfully, or who entered lawfully but whose authorization to remain has expired. The term “amnesty” is often used loosely with reference to aliens unlawfully in the United States. Sometimes it refers to converting the status of an alien from unlawful to lawful, either without conditions or on a condition such as a payment of a fee to the government. Sometimes it refers to granting lawful authority for an alien unlawfully in the U.S. to remain in the U.S., become a lawful permanent resident, or even acquire citizenship by naturalization, either without conditions or on a condition such as payment of a fee to the government or performance of particular types of work for specified periods. Amnesty comes in many forms, but in all its variations, it discourages respect for the law, treats law-breaking aliens better than law-following aliens, and encourages future unlawful immigration into the United States.
Presidents may issue pardons for offenses against the United States, whether issued to an individual for an offense or to a class of people for an offense they have in common. Although the President may pardon for crimes, including immigration crimes, aliens unlawfully in the U.S., the pardon does not constitute a grant of authority to remain in the United States, and the alien would remain subject to removal. Congress, however, has the power to enact laws that both forgive an alien’s past crimes and change an alien’s immigration status from unlawful to lawful. For example, when Congress enacted the Immigration Reform and Control Act (IRCA) of 1986 to deal with the large numbers of aliens unlawfully in the U.S. at that time, Congress included two broad amnesty programs.
The first IRCA amnesty program generally required the Attorney General to adjust to the status of lawful temporary permanent residence aliens unlawfully in the U.S. who had been in the U.S. since January 1, 1982, with subsequent adjustment to lawful permanent residence. The second IRCA amnesty program generally required the Attorney General to adjust to the status of lawful “special agricultural workers” aliens unlawfully in the U.S. who performed 90 days of qualifying agricultural work during the 12 months preceding May 1, 1986, and who could qualify for immigrant status, with subsequent adjustment of their status to that of lawful permanent residence. Over 2.5 million aliens unlawfully in the U.S. availed themselves of the IRCA amnesties to attain legal status.
With respect to the IRCA amnesty programs, the House committee originating the legislation said “a one-time legalization program is a necessary part of an effective enforcement program . . . .” When the Senate considered the final legislation, a Senator from Texas asked the floor manager of the legislation, a Senator from Wyoming, a question about amnesty:
. . . [O]ne of the things that has concerned me having looked at the problem on our borders, is that there may be those in other countries who will say that since we granted amnesty once maybe we will do it again. And rather than sign up to be on this list of 1.9 million people that have the dream of someday being able to come here, maybe people will just come on across the border thinking it will happen again.
So I ask my colleague, as one who has worked 6 years on this bill, and who clearly is going to have much to say about changes that will occur in the future, is it the clear position of the distinguished chairman that under no circumstances will there be another blanket amnesty in the future?
The Senator from Wyoming responded:
. . . I can assure the Senator from Texas that as long as I am involved in it that will be exactly the message that will be sent, that this is it. This is a generous Nation responding; instead of going hunting for you and going through the anguish of that in the cities and communities of America, this is it. It is one time.
When Congress enacted the IRCA amnesty programs in 1986 for aliens unlawfully in the U.S., the population of aliens unlawfully in the U.S. was an estimated 3.2 million. In January 2011, that population was an estimated 11.5 million.
Grants of amnesty, regardless of the form of the reward they give to aliens who knowingly entered or remain the U.S., discourage respect for the law, treat law-breaking aliens better than law-following aliens, and encourage future unlawful immigration into the United States. If America suddenly awards legal status to aliens unlawfully in the United States, it will treat them better than aliens abroad who follow America’s immigration procedures and patiently await their opportunity to get a visa authorizing them to come to the United States. And, of course, if America suddenly awards legal status to aliens unlawfully in the U.S., it will, as the IRCA amnesty proved, spur more aliens to enter or remain unlawfully in the United States, in the confident expectation that Congress will continue enacting future amnesties that provide aliens unlawfully in the U.S. a shortcut to legal status. The government should pursue a measured set of approaches to a wide variety of immigration issues, but in all events exclude amnesty for aliens unlawfully in the United States.
Conclusion: Congress Should Encourage Lawful Immigration and Prevent Unlawful Immigration. For more than two centuries, America has encouraged and benefitted from lawful immigration. Congress should continue to search for appropriate ways to encourage lawful immigration, reducing the burdens of the immigration process on both the government and lawful immigrants, and making it easier for both America and the lawful immigrants to enjoy the economic and cultural benefits that result from lawful immigration. Congress also should continue to search for appropriate ways to prevent unlawful immigration and secure America’s borders. As Congress moves forward, it should not adopt failed policies of the past, such as amnesty, which discourages respect for the law, treats law-breakers better than law-followers, and encourages future unlawful immigration. When Congress implements step-by-step the proper policies, America will benefit greatly from the arrival on America’s shores of lawful immigrants who, as Ronald Reagan said, will find “a new and better life for themselves and their children in this land of liberty and opportunity.”
—David S. Addington is the Senior Vice President for Legal and Judicial Policy at The Heritage Foundation.