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Elephant In The Room: Amnesty And The Rule of Law

by Gary Endelman

Gary Endelman As the run-up to the 2004 national elections picks up steam, the political imperatives for a widespread immigration amnesty will also intensify. Both parties are vying to broaden their appeal and make inroads among Hispanic voters whose support is seen as vital to winning such electoral bonanzas as Texas, Florida and California. Legalizing the undocumented is the solution du jour, even though the recent California recall election suggests that Hispanic opinion on this issue may not be as monolithic as the political spinmeisters think it is. The Miami Herald recently reported that "an exit poll showed 52% of Hispanic voters opposed (Gov.) Davis' September decision to allow undocumented Mexicans to get a California driver's license. Winning candidate Arnold Schwarzenegger campaigned against the measure." Nonetheless, President Bush has always wanted to use immigration as a wedge issue to expand his electoral base and would have brought forward a sweeping amnesty long before now if not for the horror of September 11th. Karl Rove is looking for the right time to strike. Claire Buchan, a White House spokesperson, said it all when she told the New York Times: " The President has expressed a very strong interest in migration policy and matching willing workers with willing employers." Can the repeal of employer sanctions be far behind?

There is a sense on Capitol Hill that the trauma of that awful day has ebbed somewhat, enough to alter the political calculus. Senator Orrin Hatch, the conservative Utah Republican who chairs the Senate Judiciary Committee, plans to introduce a bill that would grant legal status to tens of thousands of high school students or graduates who are illegal immigrants. Known as the Development, Relief and Education for Alien Minors ( Dream) Act, it has 36 co-sponsors, one-third of them Republicans. The very liberal Edward Kennedy and the stalwartly conservative Larry Craig have co-authored another initiative ("Agricultural Jobs, Opportunity, Benefits and Security Act of 2003") that would grant legal status to 500,000 undocumented farm laborers if they have worked in agriculture for 100 days leading up to August 2003. Senators from Massachusetts and Idaho, not to mention the Chamber of Commerce and organized labor, rarely agree on anything, but they both know good politics when they see it. So do Republican Congressman Chris Cannon and Democrat Howard Berman, both from California, who have brought forward a companion AGJOBS bill in the House of Representatives. Senator Kennedy openly proclaims his intention to sponsor "follow-up legislation for other industries," according to the New York Times. Tamar Jacoby, a Senior Fellow at the Manhattan Institute, wrote recently in the Los Angeles Times that Sen.Kennedy and Sen. Charles Hagel, a key Republican from Nebraska, will propose "comprehensive legislation" in the "coming weeks". Senator Kennedy is taking dead aim at the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996; nothing less than its outright repeal will satisfy him. The AFL-CIO wants to regain lost glory by organizing illegal service workers and now supports the repeal of employer sanctions. Big business will not stand in the way of a new legalization initiative.

The numbers continue to swell. While Proposition 187 was a misguided attempt to cut off educational and medical services to illegal migrants in California, the political, social and economic need to come to terms with the consequences of a burgeoning population was an entirely legitimate one. Census Bureau statistics place the number of undocumented in California alone at more than 2 million. Immigration, both legal and illegal, is no longer a regional phenomenon. USA Today recently reported that, in the 27 months following the 2000 Census, Georgia had the fastest growing Hispanic population of any state, almost a 19% rise. Atlanta witnessed the most dramatic growth in Hispanic population of any American city. Six of the top 10 Hispanic growth states were in the Old Confederacy. Oregon had over 312,000 Hispanic residents according to a recent Census Bureau report and the real figure may be closer to 500,000 in the opinion of Mexican consular officials as reported in a Salem, Oregon newspaper. While California gets most of the headlines on illegal migration, when viewed in terms of growth in Hispanic residents, it does not even make the top 10; South Carolina, Kentucky, Arizona, Alabama and Washington, D.C. all were attracting Hispanic population in greater relative numbers. Not only are there more Hispanics in the United States, they are younger and poorer. A profile compiled last year by the Census Bureau found that the percentage of Hispanics under age 18 is more than 50% higher than non-Hispanic whites, with nearly three times as many Hispanics living below the poverty line. During the 1990's, the nation's immigrant population grew by 11.3 million, more than at any time in our history.

The issue is not whether farm laborers should be able to unionize, or visit their families in Mexico and return here without fear of arrest, or be able to sue employers in federal court if they are cheated, abused, or mistreated. Talented high school students whose parents brought them to America deserve the right to a higher education. Simple justice is not subject to rational debate. The issue goes beyond these immediate concerns. However compelling their claim is on the national conscience, the resort to amnesty as a means of their advancement erodes the very rule of law that offers the last, best hope of a true, honest and sustainable solution.

In a democratic society, a national consensus to address the most controversial problems can only arise from an informed partnership between an aroused citizenry and an engaged government. Amnesty is not a solution to the problem of illegal immigration, but, rather, an abdication of the need to come up with a solution. For precisely this reason, such a bandaid approach will never be accepted as legitimate by opponents, nor will it prevent the need for yet another amnesty in the future. While short-term gains can be achieved by legislative tinkering or imposed by judicial fiat and executive order, only through a slow but painful reform of the fundamental operating assumptions on which our immigration system is based can we ever bring the undocumented in from the shadows to realize the promise of American life in full measure. If we repeat the mistake of 1986 by failing to overhaul our immigration laws at their roots, we are laying the foundation for an even more divisive debate over yet another amnesty that will further erode the social fabric whose unity is so precious to our national welfare.

Immigration is the elephant in the room that cannot be swept under the carpet. While amnesty is bad public policy, Congress' repeated actions/inactions in divorcing our immigration laws from our economic needs make such amnesty inevitable in some form or fashion. America has neither the political will nor the capacity to deport millions of uninvited guests. Not only do they do the hard and dirty jobs on which the rest of us depend, the remittances they send home stablize the economies of our political allies throughout Latin America. America's tolerance of their presence is, in effect, the most widespread and effective form of foreign aid that we have. Amnesty is also a political necessity for Mexican President Vicente Fox who has staked his entire political reputation on being able to reach just such a deal. In fact, when Presidents Fox and Bush got together this Monday in Thailand at the Asia- Pacific Economic Cooperation Forum, the issue of immigration amnesty was high on their agenda. So, we all know that amnesty is going to happen sooner or later; only the details remain to be decided.

Our challenge now is to ensure that, when the next amnesty comes, there will no longer be the need for any amnesty after that. This is impossible unless we realign our immigration priorities and stop thinking of immigration as social work. Employment-based immigration must no longer be an afterthought to a family immigration system that allows large numbers of low-skilled immigrants to work permanently in this country without any effective form of labor market control, to the disadvantage of mostly-minority American workers who lack the education or skills to get better jobs. Labor certification does nothing to protect these Americans since the jobs family-immigrant competitors do will never be certified in the first place. If we want to cut off the need for amnesty at its source, we must eliminate the entire family-based immigration system with the exception of the Family 2A category. It is inhumane to separate families or give green card holders the Hobson's choice of either living apart from their spouses and children or living with them illegally. There should be no cap on the Family 2A category, but everything else on the Family side of the ledger goes. Truth be told, much of the domestic irritation with so-called "abuses" of the employment-based immigration system actually is directed against family-based immigrants who are unchecked by any prevailing wage or labor market control filter. The work visas are simply a more inviting target. Other than genuine refugees/asylees fleeing persecution or bullets, most people outside one's nuclear family come to the United States for one reason, namely to work. We force them to do this illegally by making it impossible to do it under color of law. The artificial 10,000 limitation on the immigration of essential workers insults our intelligence and makes repeated amnesties that much more likely. The continued resistance of the US Department of Labor to the efforts by honest employers to regularize the status of the undocumented has the same effect and frustrates the deep yearning of illegal immigrants to join the American nation and provide a better future for their children. Unless we end chain migration and transfer these immigrant visa numbers to the employment side of the ledger, American workers, who think they are shielded from foreign competition by labor certification but really are tangential to its true concerns, will never get the protection they need and deserve.

When the law does not allow for change, change will come outside the law. It is the very concept of a rule under law that suffers when this continues to happen, time after time. As we accept amnesty now, let us plan to make it unnecessary ever again.

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.