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Honest Choices: Complexity, Elitism And The Frustration Of Fundamental Reform
by Gary Endelman

Gary Endelman A system so complex that those most affected by it have little, if any, idea of what is happening to them rarely presents the American people with the opportunity to make honest choices about what kind of immigration system they really want. Regardless of whether they are for open borders or closing the gates, immigration activists are united in the belief that the maintenance of such complexity is in their institutional self-interest. Knowledge is power and power is not to be shared with the American people. Indeed, the whole point of any effective immigration strategy is not to disclose ultimate ends but focus on incremental change that is self-contained without any discussion of its wider impact. Tactics are everything and success is defined solely in terms of short-time outcomes. Such a chess game leaves federal agencies despairing of meaningful congressional oversight, thus forcing, perhaps allowing, them to change the immigration law on their own through enforcement and interpretation. How much and what kind of immigration America needs or wants are questions rarely high on the agenda. The less the public knows, the more the experts can dominate the conversation.

It may be that the American people would turn thumbs down on an enlightened and expansive immigration policy if they were ever allowed to decide. They have not been. Ironically, while the pro-immigration lobby, and its organized representatives, constantly proclaims that America benefits from more immigration, they seem not to believe their own slogans. One suspects that, in their inner sanctums and secret gardens, the pro-immigration groups share nagging doubts about the wisdom of the body politic and secretly suspect that their fellow citizens may not really embrace the immigrant cause after all. Beyond that, maybe it is not just Main Street that doubts this, maybe those calling most loudly for more employment-based immigration do not really believe that this is good for America. At their core, they have always secretly felt that business-related immigration lacks sufficient moral integrity to justify their support.

Indeed, most organized immigration groups like to approach immigration as an expression of social outreach or international social work. Asylees, refugees, family unity- all this is OK because it helps the poor and the downtrodden themselves. By contrast, growing the economy in a way that benefits corporate America makes these same immigration advocates uncomfortable. Help Wall Street and Silicon Valley? Be on the same side as the multi-nationals? Enlist under the banner of a free market economy in the age of corporate fraud? Hardly the heady stuff for a great moral crusade. Perhaps the reason that many immigration advocates do not invest fundamental reform of employment-based immigration with the same passion and compassion that they so readily and repeatedly lavish upon immigration issues without such large $ signs is that, when the dust settles, they neither trust nor believe in the capitalist system or the values it represents. While these groups spend much time and effort to influence Congress and the INS on employment-related issues, their activism flows not from an honest conviction in the creative potential of work, but from a practical realization that their economic self-interest, and that of their clients, is directly at stake. They care because they have to.

The nativists are equally disingenuous. They know that, if the American people are not scared into extreme actions, our national traditions of openness, generosity, and cultural diversity will win out. The organized anti-immigrant lobby does not want a robust national conversation on immigration; rather, they want a crisis whose fever pitch will make such a dialogue impossible. To these folks, the tragedy of September 11th is a godsend; the Tom Tancredos of the world, who had previously been marginalized into political insignificance, are now making a comeback on Capitol Hill. They need a frightened America to hang on to political respectability. The more threatened the nation seems to be, the better the nativists like it. They may cry for more green cards and less H-1Bs but, if truth be told, most of this crowd wants neither. It rejects the notion that a regulated movement of peoples must accompany a regulated movement of capital, goods and services as an inescapable feature of American involvement in the global economy of the 21st century.

Truth be told, both the pro- and anti- immigration people do not trust the American people to do the right thing. How they define that is, of course, diametrically opposite. What unites them is a desire to keep the game within the Beltway in order to maximize their own importance. For that to happen, complexity must remain an implacable obstacle to true reform. Right now, bad laws survive because they are not enforced and do not last when they are. Look what happened with IRCA. Big business and organized labor, for example, both want an end to the failed concept of employer sanctions but September 11th has stalled the momentum for repeal; the INS can read the political tea leaves and has decided sub silentio to attack criminal aliens and leave the employment of the undocumented, save for the most open and obvious examples, essentially undisturbed. If they did not, if the INS tried to make employer sanctions mean something, the American economy would recoil in protest.The last time the INS got serious about I-9 compliance, meat packers in the Midwest and onion growers in Georgia went nuts. The best way to get rid of this failed I-9 experiment is for the INS to start enforcing IRCA.

The same thing is happening with the current INS obsession with keeping tabs on alien domiciles. The Department of Justice appears to be serious about enforcing a requirement that all aliens, even green card holders, inform the INS of every change in address within 10 days. Since America is the world's most mobile society, not to mention that immigrants move around even more than their neighbors, it is easy to foresee a veritable Niagara of AR-11 change of address forms descending on the Service in the weeks and months to come. Last Sunday, the Associated Press reported that more than 2 million documents, including some 200,000 AR-11s, were gathering dust at the INS warehouse complex outside of Kansas City, Missouri. INS spokesperson Bill Strassberger explained that "The field offices weren't sure what to do with all of the documents they had not been able to look through, and they were a bit overwhelmed by the unprecedented growth in immigration." Immigration rights advocates have it all wrong. Instead of screaming against the INS campaign to force change of address notification, they should go into every place where the foreign-born live and coordinate a tidal wave of AR-11 activity that will drown the Service in its own bureaucracy.

America needs to look itself square in the mirror and decide what our policy on immigration should be. Those who have dominated the conversation until now should step aside. The doubters, and the detractors, the silent men whispering in the shadows are wrong. We can approach big issues in a mature way and come up with the right answers. It is long past time that fundamental decisions on immigration should be taken away from the experts. We need fewer immigration laws and rules that are easier to both understand and enforce, not more statutes with no end in sight whose very complexity frustrates enforcement and encourages disrespect for the law itself. We need much more immigration and much stricter enforcement. It should not be that hard to decide how immigration can help the economy and go from there.

It is necessary for the American people and their elected representatives to regain control of what our immigration laws mean from an unelected bureaucracy that creates policy based on institutional memory and its own sense of what counts. Elections may come and go, Congress switches hands, new occupants move into the White House, yet the INS and the USDOL remain, largely immune from either congressional oversight or popular will. Lamar Smith or Barney Frank may come and go but the DOL goes on forever! When we talk of H-1B compliance, for example, does it really make a dime's worth of difference if George Bush or Mao Tse-Tung is in charge? This is a little understood but pernicious tax that all of us pay to the unholy alliance of complexity and elitism.

We, as a nation, have lost the ability to shape those immigration policies that most shape us. America does not, for example, know how many or what kind of foreign workers it wants and so the US Department of Labor responds by piling one set of regulations on top of the last until the life of every tree on the planet is in danger. America does not know how or whether such workers contribute to, or undermine, the national interest and so the INS decides to curb its insatiable appetite for uneven adjudication by enunciating a set of criteria under the New York State Department of Transportation decision that, while not repealing the national interest waiver provision outright, placed it on life support from which it is only now being weaned. It is not surprising that, as a people, we do not provide our civil servants with the guidance they need, and which they have every right to receive, since our political class, and the lobbyists on whom they depend for expertise, have conspicuously and deliberately failed to give it to them. Not knowing what the nation wants, the bureaucracy decides for itself and everyone loses.

I believe that the American people will support more immigration if we, who claim to want it, have the ability and the guts to tell them why we are right and really mean it. Where do we start? The same place where former President Ronald Reagan started:

"Humans are humans. We all wish for a better life for our families and children. The blood that has soaked into the earth of foreign lands while defending our freedom is all of one color. We are unique...we are a country founded on immigration. We are a country of immigrants. That is what makes us strong. That is what allows us to move forward. This is the American way."

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.