"Give Me the Tools"

By Mark Krikorian on July 9, 2007

National Review, July 9, 2007

"If someone else has a better idea, I'd love to have them give it to us." That was John McCain, challenging his fellow Republican presidential candidates in early June to offer an alternative to the amnesty bill he helped craft with Ted Kennedy. Well, here's a better idea: enforce the law.

Homeland-security secretary Michael Chertoff says it can't be done under existing law: "Give me the tools to do it," he said in a recent pitch for the amnesty bill, which also promises some future improvements in enforcement.

This is a conceit. Many statutory tools already exist to make enormous headway against illegal immigration. But, for his entire administration, George W. Bush has presided over what can only be described as a Silent Amnesty, refusing to enforce the law as it's written today, and even taking steps to help illegal aliens embed themselves in American society.

Were the president to enforce the law, the obvious starting point would be the 850 miles of fencing that Congress mandated last year. Only a few miles have been completed, and less than half is projected to be finished by the end of next year. Speeding the fence's construction would signal the seriousness of enforcement, given the resonance of the issue with the public and the political class's transparent contempt for the idea (captured by McCain's concession to Vanity Fair: "I'll build the goddamned fence if they want it").

Controlling the border isn't just about physical barriers. The administration also can change how it deals with those illegal immigrants who make it past the border. Starting about a year and a half ago, all illegal aliens apprehended near the south Texas town of Del Rio have been prosecuted for illegal entry and briefly jailed, rather than immediately returned across the border to Mexico. As one agent put it, "There's nothing we're doing that wasn't already on the books. It's nothing new. We just started enforcing the law."

What it did require, though, was additional detention space, prosecutors, and the other accouterments of criminal justice -- in addition to a directive from the top. This initiative has resulted in a 57 percent drop in arrests for the first part of this year in Del Rio, but the area's arrests account for only 3 percent of total illegal-crossing arrests nationwide. Making this policy permanent and uniform is one of those "better ideas."

Beyond the border, the most important component of effective immigration enforcement is to prevent illegal aliens from finding work by making legal status a labor standard -- similar to the ban on child labor. A tool to achieve this could be a version of something we have now: the Employment Eligibility Verification System (EEVS), a voluntary online tool for employers to check whether the people they hire really are who they say they are. About 16,000 employers are currently participating.

Eventually, Congress will have to mandate that all employers verify all their employees' identities through this system, as the current Senate bill would do. But there's no reason to accept amnesty as a price for a verification system. There are plenty of ways the White House could get the ball rolling administratively, without a new law, and thus close off jobs in the industries where illegal immigrants are most likely to work.

All federal contractors could be required to enroll in the EEVS as a condition of receiving funds. President Clinton employed a variant of this approach in 1996 when he signed Executive Order 12989, which empowered the government to block firms from receiving federal contracts for a period of one year if they knowingly hired illegal aliens. Sadly, this was a mere political ploy: The order required government agencies only to "consider" debarring a firm for hiring an illegal worker, and the General Services Administration, which was to maintain the "Excluded Parties List," never took any steps to implement the measure. A new executive order requiring federal contractors to enroll in the EEVS, together with serious follow-through, would go a long way toward adopting legal status as a mainstream labor standard.

Curtailing an illegal workforce could also be accomplished by fining those firms that submit W-2 forms with mismatched names and Social Security numbers. Most illegal-immigrant employees work on the books, giving employers a real name but submitting a Social Security number that is either made up or does not belong to them. Even though the IRS can fine companies for submitting illegitimate W-2s, and even though the Social Security Administration's inspector general has identified hundreds of thousands of such instances, no one appears to have been fined -- ever.

Today, the government simply sends out "no match" letters to employers with large numbers of employees with mismatched or fake Social Security numbers. Employers can throw the letters away
with impunity, but a pending administrative rule would lay out steps employers must take to demonstrate a good-faith effort to identify the problem. If the administration ever decides to issue this regulation in final form, it would be one more step toward ending the policy of tacitly permitting the employment of illegal aliens.

Facilitating cooperation between federal and local authorities is another legislation-free method to repeal the Silent Amnesty. The 700,000 state and local police encounter illegal aliens in the normal course of their duties, and incorporating them into the immigration enforcement system would be an invaluable force multiplier.

It is precisely for this reason that the administration has not encouraged it. In 2002, the Justice Department's Office of Legal Counsel wrote a memo highlighting the inherent constitutional authority of state and local law enforcement to make arrests for civil violations of federal immigration law. But this memo was spiked by the White House so that apologists for illegal immigration could continue to point to an erroneous Clinton-era legal opinion that prohibited local arrests for civil immigration violations.

So far, the administration allows selected police officers to receive 287(g) training -- a rigorous course in immigration law, followed by formal deputization as immigration agents. This has been used by several states, including Florida and Alabama, to create a small cadre of go-to guys on immigration for their respective police forces. This training program exists only because Congress mandated it in the 1996 immigration law. But if this administration can't eliminate it, they have made sure it proceeds at a snail's pace. Over a period of four years, only 214 police officers received the training, and there are more than 70 jurisdictions on the waiting list for the program, with perhaps hundreds more interested but discouraged by the wait.

Unfortunately, instead of making the United States a less appealing destination for would-be illegal immigrants, the administration often seems to be offering enticements. For instance, the Treasury Department formally told banks in 2002 that they could accept for the purposes of opening accounts the Mexican government's ID for its nationals living outside of Mexico - the matricula consular - thus helping illegal aliens embed themselves in American society. Reversing this decision would be a simple technical matter, but it requires leadership.

That is the core of the problem. The Silent Amnesty is not a function of the impossibility of enforcement, or the overwhelming size of the problem, or the lack of needed tools. The Silent Amnesty is a choice made by the Bush administration, part of a strategy to make a formal amnesty inevitable by creating what the Israeli settler movement called "facts on the ground."

But the Silent Amnesty is a choice that can be reversed. The enforcement measures spelled out above are not scattershot efforts, but rather the component parts of a strategic alternative to amnesty, silent or otherwise. This alternative is "attrition through enforcement" - an effort to make it increasingly difficult to be an illegal alien, so that fewer will come, and more of those already here will give up and leave. It has worked when we've tried it, it is administratively feasible, and it doesn't require any new laws. But only the president can set it in motion.

Mark Krikorian is Executive Director of the Center for Immigration Studies.