San Diego Union-Tribune, July 8, 2007
After a public outcry killed his amnesty bill late last month, Sen. Ted Kennedy lashed out at the American people: "We know what they don't like. What are they for? What are they going to do with the 12 million who are undocumented here? Send them back to countries around the world? Develop a type of Gestapo here to seek out these people that are in the shadows?"
Putting aside the senator's contemptuous attitude toward the citizenry he ostensibly serves, this raises a good question: What now? Since it's unlikely there will be any major immigration legislation coming out of Congress until at least 2009, is the only option to continue President Bush's "silent amnesty'?" in other words, leave in place his refusal to enforce the immigration laws and his assistance to illegal immigrants trying to embed themselves in our society.
No, it isn't. The way forward is not amnesty - whether today's silent variety or the formal one that the Senate bill would have enacted. Neither is it to be found in the mass roundups Sen. Kennedy alluded to with his disgraceful Nazi reference.
Instead, we need to pursue a third way, what has come to be called "attrition through enforcement." This means steady, across-the-board enforcement of our immigration laws (something we have never even tried before) so that not only would fewer illegal immigrants come here, but more who are already here would give up and deport themselves. The goal would be to shrink the total illegal population from one year to the next, instead of allowing it to simply keep growing. Over time, the size of the problem would decrease, and we would then be able to decide what further steps, if any, are warranted.
And though there are specific laws Congress could pass that would promote such an attrition policy, the first priority has to be a clear, unequivocal proof that the executive branch is actually enforcing the law, using the many tools already available to it. Too often in the past, laws have been passed that appear tough - to satisfy voter concerns - but were not implemented, thus satisfying special-interest concerns. Ending this bait-and-switch is the first step toward better immigration policy.
To do this, the president must go beyond enforcement measures at the border itself, important as they are. After all, a third or more of illegal immigrants entered the United States legally but stayed on after their permission expired. Even those who did sneak across the border won't consider leaving until it starts becoming more difficult to live and work here than it is under Bush's silent amnesty.
Probably the most important part of making it hard to be an illegal immigrant is to make it harder for illegal immigrants to find jobs. This was the point to the big 1986 immigration law, which for the first time ever prohibited the employment of illegal aliens - but it was never seriously enforced and employers were able to claim (often sincerely) that they had no idea whether the people they hired were really legal or not. As a result, the majority of those here illegally actually work on the books, having provided their employers with fake or stolen Social Security numbers.
But there is now a solution. The Employment Eligibility Verification System (EEVS) is the federal government's voluntary online tool to help employers check if the people they hire really are who they say they are. About 16,000 employers are currently participating.
Eventually, Congress will have to require that all businesses check all workers through this system, as the failed Senate bill would have done. But there was never any reason to accept amnesty as a price for a nationwide verification system; in fact, given the magnitude of the challenge of enrolling all American employers in such a system, it's probably better for the president to try to expand it as much as possible on his own, allowing for more flexibility and adaptation, before asking Congress to mandate it for everybody.
To do this, the president should take a page from Franklin Roosevelt, who in 1941 acted on his own, through an executive order, to prohibit racial discrimination as a precondition for private companies seeking defense contracts. The equivalent in immigration would be to require all federal contractors and recipients of federal funds to enroll in the EEVS as a condition of receiving funds. Given the size of today's federal budget, this would move much of the mainstream economy away from use of illegal labor. The only thing Congress would need to do would be to authorize the Social Security Administration and the IRS to report discrepancies to immigration authorities, something they are now reluctant to do for reasons of "privacy," even though they have detailed information on millions of illegal workers.
The second way the president, on his own, can make it hard to live here as an illegal immigrant is to enhance cooperation between state and local police and federal immigration authorities. The 700,000 state and local cops can be a force multiplier for the federal government because they encounter illegal immigrants every day in the normal course of business. This would increase the likelihood of detection, which for an otherwise non-criminal illegal immigrant is now close to zero. Even a slight increase in the probability that an illegal immigrant will get caught dramatically changes the incentives for those considering coming here illegally (and for those already here illegally).
The reason no legislation is needed in this area is that the president has done much to prevent expanded law enforcement cooperation - just reversing those measures would do a lot of good. For instance, the White House quashed a Justice Department memo in 2002 that laid out the inherent constitutional authority of state and local police to make arrests for civil violations of federal immigration law. Finally allowing this memo to be published would send an important new signal to law enforcement around the country.
Also, the administration has slowed to a snail's pace a program mandated by Congress in 1996 to help train police in the finer points of immigration law. Only a few hundred officers have gone through the "287g" program, despite the huge demand for it. A serious effort at ending the silent amnesty would double or triple the number of officers being trained and also prepare a less-intensive, perhaps Web-based, training program that could be accessed by thousands of officers who don't need the depth of the full program.
Using these and other methods, the president could set in motion a policy of attrition that over time would persuade a large part of the illegal population that it is time to leave. But there is little chance of this president doing anything of the kind; his chief immigration enforcement officer, Homeland Security Secretary Michael Chertoff, signaled very clearly in the wake of the defeat of the Senate bill that the silent amnesty would continue: "We're going to say to the members of Congress who think they have a better way that they should produce legislation and pass legislation, which they have not done for the past two years."
But the ball is not in Congress' court. Most of the needed laws already exist - it's up to the president to start enforcing them.
Mark Krikorian is Executive Director of the Center for Immigration Studies.