The debate over the new Arizona law - and the lawsuit it has spawned - has thrust immigration back into the national spotlight. It also has reminded us of a central question in that debate - should we enforce the law first, or should we legalize illegal immigrants and then begin to enforce the law vigorously. The president argues for the legalize-first-enforce-second approach, while the public generally favors enforcement first. In truth, any enforcement strategy will take years to implement, given the administrative, legal and political challenges it will face. If we ignore this fact and proceed with an amnesty before we have met these challenges, we will simply repeat the 1986 amnesty, which legalized nearly 3 million illegal immigrants who were then replaced by new illegal immigrants as enforcement languished.
Consider the administrative challenges of setting up a system that requires employers to verify that their workers are legally allowed to work. The current E-Verify system, which is only voluntary, does not yet have a biometric component, such as a link to driver's license pictures. Adding such a feature and increasing capacity to handle the expected workload will take time. If we create a whole new system like the one Sen. Charles E. Schumer, New York Democrat, seems to have in mind, it will take even longer.
It also will take time to create a check-in/check-out system that records the arrival and departure of noncitizens. Research indicates that 30 percent to 40 percent of illegal immigrants are not illegal border crossers but rather people who have overstayed their temporary visas. But recording arrivals and departures so we know who overstays visas will mean reconfiguring airports as well as land board crossings. While certainly feasible and long overdue, this system cannot be built overnight.
There are also challenges associated with creating an immigration court system that effectively enforces the law. Only half of those facing deportation even show up for their court date if they are not already in custody. We will have to move to a system like the one used by criminal courts that holds more of those awaiting trial and also uses a bonding system to ensure that people show up for their court dates. Again, this cannot be done overnight.
Although more has been done in recent years to control the border, more work remains. Only about a fifth of the border has any kind of man-made barrier. Building border infrastructure and hiring and training the agents we need takes time.
Three decades of neglecting enforcement cannot be overcome in a few months. Moreover, any enforcement strategy will be implemented by an immigration bureaucracy that has a poor history of implementation, which itself means the process will be slow.
In addition to the administrative challenges, there are legal challenges. The American Civil Liberties Union on the left and business groups on the right can be expected to challenge in court many, if not most, enforcement efforts. Any employer verification system will be challenged in court. So will any efforts to coordinate immigration enforcement with local police. Immigration lawyers also will fight every effort to detain more of their clients. Building new fencing and dealing with environmental and property rights issues at the border will involve legal battles. While in time these things almost certainly will pass legal muster, court injunctions and proceedings will hold up enforcement for years.
Finally, there are the political challenges that must be overcome. This, too, will take time. Once an employer verification system is made mandatory, some employers can be expected to argue that the verification system is too cumbersome and that they need more time to adjust. Airlines will pressure for delays in implementing an entry/exit system, as will business groups along the borders. Interest groups often will be successful in at least delaying enforcement because they have a strong vested interest in slowing or even stopping enforcement. In contrast, political pressure to enforce the law comes mainly from a strongly held but diffuse sense among the American people. In politics, particularistic interests often trump the diffuse public interest. This is what happened after the 1986 amnesty. It can be expected again after any new legalization.
Finally, advocates for amnesty have to understand that it is unlikely Congress will pass a legalization as the public continues to believe that not enough is being done to enforce the law. The only way to convince them otherwise is actually to enforce the law. Once the law has been enforced and the illegal population reduced significantly, then we can have a national debate about whether amnesty makes sense for the illegal immigrants who remain. In the unlikely event that legalization does pass and we then try to enforce the law, we will almost certainly have a repeat of the 1986 amnesty, and again we will be faced with millions of new illegal immigrants living in the United States.