Thursday, November 7, 2013


Now that the fight over the extension of the debt limit and the government shut down is over, (until it starts again in early 2014), President Obama has said he wants to move on and focus on “comprehensive immigration reform”.  An immigration reform bill actually was passed in the Democrat controlled Senate (S.-744) in June.  Under ordinary legislative procedures, this bill would be introduced in the House of Representatives and after the inevitable modifications, it would go to a Conference Committee of members of both houses for negotiation into one final bill for votes by both houses.

However  “ordinary legislative procedures” seem to be an endangered species; most votes of any importance in the Senate now require a minimum of 60 supporters instead of 51 to avoid the threat of a filibuster; the “ordinary” annual federal budget process has been suspended by partisan intransigence and has been replaced by a series of “continuing resolutions” that simply extend government spending at existing levels;  joint Senate/House committees like the one that was supposed to avoid the across the board cuts required by the “sequester”,  are stacked with ideologically intransigent members from both houses which make successful compromise impossible.

So what will happen when, or if, the Senate immigration bill gets to the House?  First, the President, the Democrats, Hispanic advocacy groups and their liberal supporters have insisted on a “comprehensive” reform bill.  That means they want one huge bill that addresses all the problems with the current immigration situation and is broad enough to allow the inclusion of the more permissive aspects of their version of reform.

The House Republicans want to deal with the problems with a series of bills that address specific issues.  That will allow them to prioritize the reform effort and put border enforcement at the top of the list.  Democrats are more concerned with the legal assimilation of the 11-14 million illegal aliens currently living in the U.S.

The Senate bill did pass with the support of 14 Republican Senators who were able to negotiate the inclusion of some provisions that are most important to conservatives in the House.  However, the substance of some of these provisions and the general provisions for establishing a legal status for the millions of resident illegals will still stimulate significant opposition in the House. 

Essentially the broad divisions are between those who are seeking tougher border enforcement to stem the tide of illegal immigration and those who are seeking a “path to citizenship” for current illegal residents.  The Senate bill and a similar one which has been introduced in the House attempts to deal with both issues. 

Basically, the path to citizenship creates a new class of immigrant status, the Registered Provisional Immigrant status for which illegals may apply if they’ve been in the U.S. continuously prior to December 31, 2011. The application period is for one year but can be extended by the government. There is a cash penalty fee and those with a criminal history are inelegible.

RPI status lasts for six years but is also renewable. After ten years the RPIs can apply for permanent legal resident status under existing rules. After three years as permanent legal residents, individuals may apply for citizenship, thus creating a 13 year track to become citizens.  During this process the RPIs are not eligible for Federal benefits including Obamacare.

To satisfy the border security first proponents S. 744 contains the following provisions:

The bill requires an additional 19,200 Border agents be hired bringing the total to 38,405.

Seven hundred miles of border fence will be installed

The E-Verify system of legal employee identification must be fully implemented for all employers.

Electronic surveillance, unmanned aircraft, radar stations and other sensors will be deployed.

Thus S.744 appears to be the most comprehensive attempt at bi-partisan immigration legislation to date and should provide a strong basis for the inevitable further negotiations that will come with the House of Representative’s response.  The bill however, is not without flaws and its authors have also succumbed to the usual temptation to use the “comprehensive” label to include more than is necessary to address the primary issues in immigration reform, which will make it more difficult to reach a final agreement.

The included provisions of the Southern Border Fencing Strategy and the Southern Border Security Strategy which include the above requirements, require prompt action on the part of the Secretary of Homeland Security to establish “plans” for “effective control of the border. These represent “triggers” which must be accomplished before RPIs may apply for Lawful Permanent Residence status (green card) on their way to naturalization i.e. citizenship.  However, that is a ten year process.  A Southern Border Security Commission will be created to make recommendations to achieve these goals if the Secretary of Homeland Security cannot certify “effective control” of all borders within 5 yrs.

So is this legislation going to fix the problem of illegal immigration especially from the southern border?  The answer is no.  From the Democrats and Hispanic activists point of view that was never the goal.  Their goal was legalization and a path to citizenship for the eleven million illegals now living in the U.S. and “reform” in immigration policy to allow even more immigrants into the country legally. The legislation does both.

The goals of Republicans were first to secure the border and then find some accommodation  with moderate Democrats, if any could be found, to deal with the existing illegal immigrant population. In spite of the enhanced security measures required by the bill, securing a two thousand mile border is a physical impossibility. The new border patrol agents and new technology will help but the legislation contains a “hedge” by giving the Secretary of Homeland Security five years to certify “effective control’ and then the only result of a failure will be “recommendations” on the part of the Southern Border Commission.  Until the incentives for coming into the country are reduced and penalties assessed for violation of the law, illegal immigration will continue. 

Ironically, the very fact that the current eleven million may be granted an amnesty including full citizenship benefits, might itself be a continuing incentive for the next eleven million to come.  The legislation actually makes it more difficult to deport illegal aliens by providing enhanced legal counsel  and more discretion for immigration judges to grant legal status of some kind.  De-incentivizing  also must include lowering the expectations of employment.  This makes the mandatory use of E-Verify by employers crucial.  But this is a five year plan with staged implementation. 

House Republicans have already introduced several bills dealing with specific parts of the Senate’s legislation.  Clearly they should not simply throw up non-negotiable road blocks to any reform attempt.  S.-744 is far from perfect but political momentum for doing something is widespread and the political damage that would follow a simple obstructionist position following the damage done over the government shut down and debt ceiling fiasco would be significant.  The “comprehensive” Senate bill need not be adopted all at once and the current Republican strategy of passing different parts of the bill as separate legislation can be followed if the core portions are seriously dealt with. 

The Senate bill includes reform of HB-1 visas which deal with immigrants who have special skills and request non-permanent admittance.  It also significantly raises the number of immigrants who would be allowed to enter the U.S. legally under existing law. These provisions  have nothing directly to do with the border issues or the current illegal immigrant population and could be considered separately so that they can be considered after specific analysis and debate.

There is room for toughening up the schedule for upgrading border enforcement and shortening the schedule for full E-Verify compliance with penalties included.  The  “amnesty” need not include a “path to citizenship” although this has been the “holy grail” espoused by the political Left for years.  Millions of immigrants who entered the country legally currently have permanent legal residence.  Rewarding those who entered illegally is simply a liberal gift and an attempt to add millions to Democrat Party registration.  Nonetheless, House Republicans should work to produce common sense legislation that serves the core goals of both parties while looking to the future interests of the nation, and the reality is that Democrats in the Senate will have to be prepared to make concessions also if they want to reform immigration policy in 2014.

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