My colleague Jerry Kammer has posted a couple of read-worthy blogs on the 30th anniversary of the Immigration Reform and Control Act of 1986 (IRCA); see here and here.
At the time of IRCA's passage, and for many years afterward, I was an insider: one of the cogs of government charged with implementing the omnibus legislation. Immediately pre- and post-passage of IRCA, I worked on, and later supervised, one of the teams within the Immigration and Naturalization Service Central Office (INS CO) that was charged with implementing new enforcement measures, including employment verification and penalties procedures, commonly known as "employer sanctions".
Kammer's blogs harkened me to reflect upon those years and what lessons I've drawn from them. At the time, there was a palpable excitement among those who staffed the various working divisions inside INS CO, including me. Naive as it sounds in retrospect, we felt on the cusp of great things and new challenges that would march us boldly into the future.
Three decades on, I know better. With the benefit of many passing years and a modicum of hard-won additional wisdom, like many people I regard IRCA as a profound failure, one that could not possibly have lived up to the unreasonable and unreasoning expectations for it.
Time has allowed me to look back more objectively on IRCA and the decades that followed, and I've developed my own set of insights from the bittersweet experience of living through those years inside the fishbowl. I don't pretend they're unique, but I do think they're worth stating (often, and loudly) because I'm absolutely sure the nation isn't finished yet with the notion of once again tackling immigration reform, including amnesty, and it would border on the criminal to repeat the mistakes of the past.
Here are five of my takeaways from IRCA and the decades since:
The legislation was too complex. IRCA attempted to balance so many interconnected pieces on the immigration spectrum, from two major legalization (amnesty) programs on one hand, to new enforcement provisions (including, at long last, penalties against employers of illegal aliens) on the other, that to work well the legislation would have had to be designed by a particularly talented Swiss watchmaker. Unfortunately it wasn't, because that's not the way legislation — which inevitably includes many compromises and trade-offs along the way — comes to pass. The "sausage-making" metaphor is much more apt. It is unrealistic to expect a single bureaucracy to undertake too many things simultaneously (the INS then; three relatively small agencies within the Department of Homeland Security (DHS) now). There was such a fear of failure at competently administering the amnesty programs in the window of time allotted, that the agency's leaders relegated virtually everything else in the law to second- or third-place. Just as it proved unwise then, it would be extremely unwise now to attempt to do everything in one fell swoop.
Don't trust exceptionally large pieces of legislation or fast-track methods of passing "comprehensive" reform packages. These observations are corollary to the takeaway discussed above. When there are too many moving pieces and the legislation is long, mischief-makers inevitably succumb to the temptation to bury within the hundreds of pages of legislation extraneous and innocuous-sounding language that on close inspection guts substantive enforcement and compliance measures, and ends up breaking the whole machinery, leaving nothing standing in the end but the amnesties, riddled with fraud as they were (more about that in a moment). This tactic was successful with IRCA; we saw it attempted again with the failed Gang of Eight immigration reform bill, which ultimately died the ugly death it deserved.
My guess, though, is that the next time "reform" comes up there will be attempts by amnesty-minded legislators to fast-track the legislation, a la the Trans-Pacific Partnership trade pact or the Iran nuclear deal, as a way to mute critics because, like the two deals just mentioned, fast-tracking legislation through one or both chambers of Congress is a way to virtually guarantee that more principled legislators and their staff won't have the time needed to suss out the worms embedded in an overlarge bill of hundreds of pages couched in technical and nuanced language — language that will almost certainly also be accompanied by subterfuge provisions that kill meaningful enforcement and border security programs. This must be resisted at all costs.
Refuse to accept legislation that puts benefits first and lays out vague or impossible enforcement goals to be accomplished thereafter. It has been said many times, but bears repeating: Don't accept so-called trade-offs that consist of amnesty immediately, with empty promises of fences, technology, enhanced border security, and interior enforcement to follow once amnesty is complete. That was one of the false premises of IRCA, and everyone fell for it, which, when considered with the benefit of hindsight, is astounding. It was the legislative equivalent of "I will gladly pay you on Tuesday for a hamburger today." Of course, once the hamburger's handed over and eaten, Tuesday never comes.
To be successful, an enforcement strategy must be multi-dimensional. Enforcement must focus equally on the interior and exterior (the border and beyond); and it must consist of programs that focus on mitigating both the negative quantitative and qualitative aspects of illegal immigration.
- An example of quantitative exterior-oriented enforcement — one that focuses on volume — is the Border Patrol function of patrolling "the line," the physical border of the United States, to interdict illegal crossers.
- An example of qualitative exterior-oriented enforcement is an aggressive anti-smuggling program that is designed to disrupt and dismantle criminal organizations whose business is to smuggle aliens up to, and through, the border.
- An example of quantitative interior-oriented enforcement is a viable, sustained, and visible program to ferret unauthorized workers out of America's workplaces and to penalize employers who use them; another would be an ongoing program to locate and apprehend the hundreds of thousands of aliens who overstay their visas every year.
- An example of qualitative interior-oriented enforcement is a robust and unfettered program to identify, arrest, and remove alien criminals; another example is a structured and ongoing program to identify and prosecute benefits fraudsters.
I served in the INS over the course of six different administrations before it was disbanded by the creation of DHS and its subordinate agencies. Most of the administrations of both political parties under which I served maintained at least the fiction of balanced enforcement, although in truth, during the entire time of my service interior enforcement was always the stepchild to border enforcement. This was in many ways understandable because the border is a more visible environment and is a symbol of our sovereignty. It is also more politically palatable to focus on the border because it's harder to quibble about enforcing immigration laws "on the line," whereas interior enforcement is messier because it raises questions of constitutional and statutory rights that are minimal at the border, not to mention other factors such as equities built merely by longevity of presence, even when it's illegal presence.
Congress, too, gave short shrift to the interior. In my nearly 30 years, there were never more than about 1,200 investigative agents to work the interior of the whole country, and usually the figure was more like 850-900 on-board agents due to funding constraints. Little thought was given to the fact that all of the aliens who managed to get past the Patrol's front line were ending up in the nation's back yard, the interior. Even less thought was given to the accretion of all of those visa overstayers coming through the ports of entry year after year. The result is that we now have, post-IRCA, somewhere around 11 or 12 million aliens living and working illegally in the United States, nearly half of whom entered with visas or under the visa waiver program through the front door, at our ports of entry.
Given the paucity of resources, it is little wonder that even with the passage of IRCA and its glowing promise to turn off the magnet of unauthorized employment, workplace enforcement was little more than a token program. Employer sanctions efforts were also undercut right from the start by constraining regulations put in place at the urging of corporate interests. To give one example: the requirement to notify businesses three days in advance of any audit of their I-9 employee verification forms; this did little but give them the opportunity to engage in fraud and cover-ups prior to arrival of the auditing officers.
Even so, as I said, the administrations of both political parties under which I served maintained at least the fiction of balanced enforcement until the Obama White House. This is the first administration I've seen that has been so overt in shutting down whole arenas of immigration enforcement in favor of a select few priorities. Ironically, they do so using the argument of finite resources, although the interior agent force at Immigration and Customs Enforcement (ICE) is somewhere between eight to 10 times larger than the INS investigative workforce ever was.
This "boutique" approach to interior enforcement has few touchstones with the reality of what enforcement officers, either on the line or in the interior, confront every day, because illegal immigration is as damaging to society by its sheer volume as it is by the innumerable qualitative problems that it engenders, such as aliens involving themselves in crime. The two are inexorably linked because it is only within an environment of out-of-control, high-volume immigration that alien criminals, smugglers, and fraudsters can flourish with the impunity that we see today.
Both the negative quantitative and qualitative aspects of illegal immigration must be tackled in tandem for an enforcement program to ultimately succeed in regaining control of the nation's immigration processes and restore integrity to the system. Any legislative initiative that fails to grapple with this fundamental fact is destined to failure.
Reject confidentiality provisions for amnesty seekers. With IRCA, migrant advocates argued that confidentiality was needed to encourage applicants to come forward. It's doubtful that was true then, and it's certainly not true now — by way of evidence, consider that hundreds of thousands of illegal aliens signed up for the president's extra-statutory "DACA" program, which had no legal foundation whatsoever and included no guarantees. Yet sign up they did.
Under IRCA, both the regular and seasonal agricultural worker amnesties were covered by confidentiality provisions so stringent that officials who violated them faced legal penalties.
Although the provisions contained a narrow exception to confidentiality permitting investigation of fraud in the applications, the reality is that legalization examiners were too overwhelmed to see or refer much in the way of potential fraud, leaving INS investigative agents pretty much on the sidelines, unable to pierce the veil or gain access to files without such referrals. Confidentiality stood as a firewall between enforcement agents and efforts that would have lent integrity to the legalization programs. It also stood as a barrier to other law enforcement agencies seeking leads to identify the whereabouts of criminal suspects who were thought to have filed for amnesty with the INS.
There is another point to consider about confidentiality, though, were the nation to go down the path of a second major amnesty. The legalization programs of IRCA were supposed to end the need for all future amnesties and failed miserably. One reason is because when illegal aliens were denied amnesty, they were allowed to melt back "into the shadows" because confidentiality protected all aspects of the application. There were no consequences. Instead, the files were sealed away and, because of the confidentiality restrictions, they were never sent to agents to apprehend the failed applicants. Thus began the accretion of the 11 or 12 million illegal aliens who are here now waiting to be dealt with in some form or fashion. Why did no one see this as an inevitable outcome?
If in the foreseeable future the American people are going to be asked to support a broad-based amnesty for millions of aliens illegally in the United States, they deserve to know that the message to those aliens is unambiguous: Get right with the law or go home. There can be no "third way" involving tacit acceptance of the premise that denied aliens should be allowed to drift back into the woodwork, which is exactly what confidentiality rules require. Enforcement must no longer be compromised away, and applicant files must remain open for legitimate law enforcement purposes.
This proposition is so fundamental and so important that it should be non-negotiable in discussions with amnesty advocates, because it is a test of their bonafides and their acceptance of the either-or nature of this second, and last, grand bargain.
Else, we might as well save the taxpayers a whole lot of money by issuing pink slips to DHS's immigration enforcement agents, and open the door to a revolving "forever amnesty" — or, as Hillary Clinton has said, channeling John Lennon apparently, in one of her "private" talks with financial industry titans (versus her "public" policy position): Just go for an open border, and to hell with the idea that the United States stands for a discrete place on the map with a distinct history, a distinct destiny, and a single people made from many.