The Weekly Standard

Cesar Conda and Stuart Anderson 


January 19, 2004

Volume 009, Issue 18

From the issue: In defense of Bush's immigration proposal.

"Barely Illegal "


IT WAS HARD TO TELL from the headlines and instant controversy, but President Bush's January 7 immigration speech was not about granting amnesty to illegal aliens. Instead, the president has proposed a measure that would dramatically curtail illegal immigration. However, to the consternation of critics, he favors a method--temporary worker visas--that anti-immigration members of Congress and their allies despise.


Under President Bush's plan, immigrant workers would no longer need to evade Border Patrol agents or die trying. Moreover, recognizing reality, the president would allow those now working illegally in this country to pay a fine and obtain a temporary visa, good for three years but renewable. Crucially, the president recognizes that "our current limits on legal immigration are too low," and he pledged to work with Congress "to increase the annual number of green cards."


A little background helps explain why this last point is so important. Contrary to some perceptions, current law is in practice highly restrictive in offering opportunities for U.S. employers to hire immigrants to work legally in agriculture and other non-professional fields. While H-2A visas for agricultural workers are uncapped, the procedure for obtaining them is so cumbersome and litigation-prone that fewer than 30,000 such visas are issued annually, while several hundred thousand immigrants work in the fields illegally. Though individuals may work in non-agricultural jobs under the H-2B visa, restrictive interpretations of the statute have generally prevented employers from hiring individuals for jobs other than those that are seasonal or of very short duration. In addition, that category is capped at 66,000 annually. An even lower cap limits sponsorship for permanent residence (green cards) to 10,000 per year for immigrants coming here to work who possess less than an undergraduate degree.


The absence of avenues to work legally in the United States is a primary reason for the current levels of illegal immigration. This can be seen clearly by looking back at the bracero program, which allowed foreign agricultural workers easier access to U.S. jobs.


As the bracero program expanded in the 1950s, INS apprehensions of illegal immigrants fell from the 1953 level of 885,587 to as low as 45,336 in 1959--a 95 percent reduction in the flow of illegal immigration into the United States. From 1964--when the bracero program ended--to 1976, INS apprehensions increased from 86,597 to 875,915 (and have remained at roughly that level or higher ever since).


This is not to say that workers who entered the bracero program did not experience problems or even hardships. The point is that when legal entry to work was widely permitted, illegal entry to the United States was an order of magnitude lower. And immigration enforcement officials understood this. At a congressional hearing in the 1950s, a top INS official was asked about stopping illegal immigration if Mexican agricultural workers could no longer come in legally. He replied, "We can't do the impossible, Mr. Congressman."


Congress can certainly choose to maintain the status quo, which is an enforcement-only approach. However, the evidence is strong that current policies--or even more hardened versions of them--are ineffective. From 1990 to 2000, illegal immigration increased by 5.5 million as the number of U.S. Border Patrol agents rose from 3,600 to nearly 10,000.


Existing policies also contribute to two unintended consequences: (1) More than 300 young men and women die each year trying to cross dangerous terrain or wade rivers. (2) The difficulty of an illegal crossing causes more migrants to stay in the United States after making it, rather than work for a short time and return to Mexico.


One needs a scorecard to follow the politics of immigration. But one thing worth remembering is that the main anti-immigration groups that feed information to Capitol Hill are neither conservative, Republican, nor genuinely interested in stopping illegal immigration. The politically potent groups are on the left, both unions and the anti-immigration groups, including the radical wing of the environmental movement, which favors sharp reductions in the population levels of the United States to as low as 150 million. Since newcomers increase the U.S. population or maintain it at its current size, these latter groups do not want anyone coming here legally either, no matter how helpful that would be in reducing illegal entry.


Meanwhile, Bush's critics on the right, led in the House by Colorado Republican Tom Tancredo, are wrong on key aspects of the president's proposal.


This is not an amnesty. The definition of an amnesty is an unconditional pardon. Bush's proposal requires the payment of a fine and does not guarantee a green card to anyone. In contrast, the 1986 amnesty signed by President Reagan allowed permanent residence for anyone present in the country within certain dates.


The proposal is not a repeat of the 1986 law. In 1986, Congress largely wiped the slate clean but failed to provide any new mechanisms for individuals to enter and work legally, thus ensuring another buildup of the illegal population.


This is not the end of the American worker. Any temporary worker program will contain labor protections. Moreover, Americans who may now feel they compete unfairly with someone here illegally (who is thus too scared to make problems for the boss) will no longer face that problem.


THE POLITICS for the administration are complicated but not daunting. Critics say the president is proposing immigration reform for political reasons and at the same time argue that most Americans oppose it. Both can't be true. In fact, President Bush started working on this issue as early as February 2001 and neared completion of a proposal prior to the September 11 attacks, which delayed consideration of the initiative. Moreover, the polling data on this issue are so ambiguous that no one can say it's a clear vote-getter, even among Hispanics. Despite the cynicism that greets almost any proposal emanating from Washington, one should not discount the most obvious explanation for the initiative: The president believes it's good for the country.


Another political wrinkle: While the proposal is said to upset the president's ideological base, in fact, there are many conservative enthusiasts, including senators Larry Craig and John McCain and congressmen Chris Cannon, Jeff Flake, and Jim Kolbe, who have called for a "market-based solution to a market-based problem." Moreover, the business community strongly supports immigration reform, and pro-immigrant groups like the National Immigration Forum have made positive statements. This will enable the administration to make the Democrats play policy, not politics--or face public criticism from pro-immigrant groups.


Still, there is room for the president to improve his proposal and at the same time increase the prospects for genuine reform.


First, he can actively engage on his call for legal immigration increases, which would largely eliminate criticism from the left that the proposal does not provide a realistic path to permanent residence for workers. Large, multiyear increases in the "Other Workers" employment category is one approach to take, which means workers with less than a bachelor's degree could receive green cards if sponsored by their employers. Another approach would be to remain open to some form of "earned legalization" concept, requiring prospective work in the country for a period of years. (Such a concept is already contained in two existing congressional measures, the McCain-Kolbe-Flake bill and the AgJobs Act.)


Second, the administration can closely monitor support for more modest legislation, such as for agricultural guest workers, and see whether taking a bite out of the apple first will make it easier to then move a larger initiative.


Third, if the path to permanent residency becomes more realistic as part of a bipartisan agreement, the White House will have to keep its eye on the centerpiece--establishing a flexible temporary worker program for employers--making sure that later agency regulations do not destroy the utility of the visas, as has happened before.


By combining enforcement with new temporary worker visas, the president's plan carries with it a tremendous opportunity to reduce illegal entry into the United States, freeing Border Patrol agents to focus on more serious concerns like terrorism. It would make controlling the border far more manageable and make known to authorities anyone seeking legal status. Now, who was saying that the president no longer had a domestic agenda?


Cesar Conda, who served as Vice President Dick Cheney's domestic policy adviser, is a board member of Empower America. Stuart Anderson, former staff director of the Senate Immigration Subcommittee, is executive director of the National Foundation for American Policy.

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