Learning From History

As the temperature surrounding immigration issues rises, let's remember that our political system walked this road 20 years ago during the debate that led to the Immigration Reform and Control Act (IRCA) of 1986. In its attempt to tackle illegal immigration, Congress struck a deal in which border control and employer responsibility were combined with amnesty. But the deal disintegrated in practice. Will Congress heed the lessons of IRCA as it revisits immigration reform?

The core idea of IRCA was that it should be against the law to hire people illegally in the country and that employers who do so should be subject to penalties. Employer penalties were first proposed in the 1950s by Paul Douglas of Illinois, a liberal economist who became a great U.S. senator. In 1972, Peter Rodino, then chairman of the House Judiciary Committee, sponsored employer-sanctions legislation that died. In 1977, the Carter administration drafted an employer-sanctions bill. But the Judiciary Committee chair, Mississippi's James Eastland, a champion of agricultural interests that opposed restrictions to cheap labor, refused even to hold hearings on it.

Senator Edward Kennedy then proposed a study panel called the Select Commission on Immigration and Refugee Policy. Chaired by the distinguished Theodore Hesburgh, president of Notre Dame University, its members included a newly elected senator, Alan Simpson, and a junior congressman, Romano Mazzoli. Father Ted, as he was known, summarized the commission's work by saying, we need to close the “back door” to keep the “front door” open. Simpson and Mazzoli became indefatigable ambassadors for the commission's recommendations. They sponsored immigration-reform legislation in three successive Congresses before their bill was finally enacted in 1986.

Although the Simpson-Mazzoli bill is best known for its core elements of employer sanctions, border enforcement, and legalization, the IRCA framework had at least five pillars. Habitually brushed over are the state legalization impact assistance grants and the special agricultural worker programs. Under the legalization assistance grants, states were provided with $4 billion over four years to help finance services to people in the process of becoming legalized. This was by far the lion's share of resources allocated for implementing IRCA. The agricultural provisions provided separate, highly permissive legalization provisions for farm workers. A companion authority allowed for “replenishment” agricultural workers -- guest workers in all but name. It was never used because agriculture did not have labor shortages for several years once its workforce gained legal status.

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Today's conventional wisdom is that IRCA failed and the immigration system is badly broken. With at least 10 million people in the country unauthorized to be here, more than double the number when IRCA passed, that judgment is not surprising. Yet the solutions being advanced now are fundamentally those that were debated in the early '80s and before, and that ultimately became IRCA.

The practical question is whether we can do it right this time. In the IRCA compromise, legalization was the carrot required to get the stick of stronger law enforcement. Yet law enforcement proved too weak, while legalization proved to be the most successful (and underappreciated) of the bill's provisions. Almost 2.7 million of the 3 million applicants for legalization received a newly created temporary-resident status, which, in turn, conferred eligibility for permanent-resident status and citizenship after that.

The legalized population has experienced substantial improvements in standards of living, economic mobility, and integration into U.S. society. This was predicted as a result of people's acquiring legal status and eventually full rights. The funding provided to states to absorb costs -- primarily English-language training -- for this population represented a substantial human-capital investment and was by far the largest allocation of money provided in the legislation. Otherwise, the program paid for itself by charging fees to applicants for processing their cases.

Where legalization fell short was less in the implementation of the program than in the eligibility criteria Congress established for it. The general legalization program required people to have been in continuous residence in the United States for at least five years. That meant that a substantial number -- probably half -- of the illegal population in the country was ineligible to apply. The assumption was that those people would leave because they would no longer be able to get jobs. Instead, they became the nucleus of today's unauthorized population.

In addition, separate, special legalization provisions for agricultural workers were so loosely drawn that large-scale fraud became widespread in a segment of the undocumented population. It left an aftertaste of unfairness that deeply colors consideration of the issue today. Overall, however, legalization was a notable political and administrative achievement whose success was by and large unexpected.

For its sponsors and for immigration agencies, employer sanctions were the bill's historic breakthrough. They set aside what was known as the Texas proviso, a 1952 provision that made it illegal for a foreigner to be in the country without authorization but permitted employers to hire such persons nonetheless. Because the availability of jobs in the United States is the primary reason people cross the border illegally or overstay their visas, cutting off the supply of jobs had long been seen as critical to effective immigration enforcement. In its report, the House Judiciary Committee called sanctions “the principal means of … curtailing future illegal immigration.”

As with other labor standards that are an employer's legal obligations, such as minimum wage or Social Security requirements, enforcement depends on a high degree of voluntary compliance, which, in turn, depends on ways to comply that do not raise employer costs prohibitively. Enforcement can then focus limited resources on a relatively small number of habitual violators.

That was the idea with the Simpson-Mazzoli bill, but key ingredients were missing. Most important was Congress' unwillingness to mandate a reliable way for employers to verify the legal status of whom they were hiring. As a result, more than two dozen different kinds of existing documents were permitted. Employers were required only to complete and maintain a record (the I-9 form) of having checked one or more of them. The law called upon employers to accept any document that “reasonably appears on its face to be genuine” and included provisions that discouraged aggressive questioning about legal status because of fears of being charged with hiring discrimination.

It was not a recipe for robust employer self-enforcement. Still, proponents believed half a loaf was better than none -- the important victory was that legal immigration status had been established as a condition of employment. IRCA represented the largest expansion of federal regulatory authority since the enactment of the Occupational Safety and Health Act in 1980.

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The fatal weakness was that most of the documents that were allowed were easy to counterfeit. A fraudulent document industry flourished to serve immigrant communities. The easy availability of fraudulent documents has also severely undermined the government's ability to show the “knowing” hire of unauthorized workers, a legal requirement that had to be proven.

Meanwhile, resources devoted to sanctions enforcement have been puny. There are more than 8 million employers in the country. In 1990 there were about 500 investigators enforcing employer sanctions; today, fewer than 100.

There has been ample opportunity since 1986 to make midcourse corrections. Administrations and Congresses of both parties have sidestepped the issues. The bill of particulars is substantial.

Responding both to internal and external pressures, the former Immigration and Naturalization Service (INS), which had lead responsibility for sanctions enforcement, often shifted priorities between sanctions and other enforcement mandates, such as criminal alien removal, drug interdiction, or anti-smuggling. These competing pressures are even more intense today in the new Immigration and Customs Enforcement bureau (ICE) of the Department of Homeland Security, where employer enforcement is now housed alongside anti-terrorism and financial-crime mandates.

Successive administrations and congressional appropriators have failed to support adequate funding for enforcement and employer sanctions.

Interagency cooperation between the Department of Labor, whose responsibilities include other employer oversight activities, and the Social Security Administration (SSA) to improve verification efforts was episodic and weak because the agencies' respective missions were often difficult to reconcile.

In 1996, Congress charged the INS and the SSA with implementing pilot programs for employers to use in verifying employment-eligibility documents. The programs have remained in pilot status through successive reauthorizations, little or no new funding has been provided to support them, and employer participation in the pilots is voluntary. As a result, a workable verification system has been developed but its impact has been minimal. Less than one-twentieth of 1 percent of the nation's employers use the verification pilot.

In the late 1990s, the INS attempted a new employer-enforcement strategy as a counterpart to dramatic changes in border-enforcement strategy. The agency concentrated its limited employer-enforcement resources on cases where severely abusive employer practices (e.g., trafficking, linked smuggling, and job networks), multiple violations, or industry-wide illegal practices were occurring. The goals were to deter illegal hiring by making high-visibility cases and to win broader public support for employer enforcement by demonstrating the harm that was occurring.

The successes were few, and the political pressures against more aggressive measures ultimately prevailed. From onion growing in the Southeast to meatpacking in the Midwest, unauthorized workers had become the dominant labor force in more and more occupations and locations around the country. Jeopardizing access to that labor supply absent other ways to get a workforce represented a fundamental threat to the survival of more and more employers, and their businesses and communities. It could not succeed economically, hence it failed politically.

The experience of nearly 20 years has led to a stark paradox of widespread de jure compliance and rampant de facto violations. Nominal employer compliance with the law, i.e., checking documents and completing the I-9 form, has become standard practice. Yet illegal immigration and employment are at an all-time high. Persons without legal status present documents that employers look at to complete the form. Without any way to check the validity of the documents, the transaction is a win-win for the employers and the workers with fake documents. The losers are the rule of law, fair workplace conditions and protections, the integrity of the immigration system, and, increasingly, public support for immigration altogether.

In its cornerstone provision, IRCA changed the law and assumed a static world where the United States could put the policy messiness of illegal immigration behind and begin anew. It did not anticipate the deep changes in labor markets, demographics, and a globalizing economy that were just ahead. The fault lies not so much in the failure to anticipate but in the failure to adapt to these changes.

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The story is quite the opposite with border enforcement. In that case, policy adaptation to changed conditions was dramatic. Since the mid-1990s, serious efforts to strengthen border controls, especially in the Southwest, have been put in place. Border enforcement has won broad bipartisan support, receives large budget infusions that have been sustained for more than a decade, and has intensified with sweeping new mandates since September 11.

The changes had their origins in pivotal events in the early 1990s that included the 1993 World Trade Center bombing, successive Cuban and Haitian boat emergencies, the anti-immigrant gubernatorial campaign of California Governor Pete Wilson, that state's successful Proposition 187 drive, and the North American Free Trade Agreement with its hope of accelerated job creation in Mexico. The political climate surrounding illegal immigration and the seeming ineffectiveness of immigration control were widely seen to demand federal leadership and attention.

The Clinton administration responded aggressively, making immigration a priority issue. It became part of the broader agenda of strong, community-based law enforcement that was a theme of Bill Clinton's presidency. One of its earliest manifestations was a new border-enforcement plan called Operation Gatekeeper, plus the commitment to a sustained buildup of resources from California to the Gulf of Mexico.

The strategy was based on a fundamental change in approach to border enforcement. New tactics emphasized disruption and apprehension; policy sought to prevent illegal entry through deterrence measures that included a broad mix of “people, equipment, and technology.” The administration argued for “borders that work” -- that is, borders that prevent illegal immigration and facilitate legal immigration and crossings. The new resource allocations and other changes the INS advocated were reflected both in the work of the U.S. Border Patrol and in improved inspections activities and capacity at legal ports of entry.

The policy also called for balanced enforcement, which meant border measures as part of a broad set of enforcement responses, both at the border and in the interior of the country. To that end, the INS consistently requested resources for stepped-up employer enforcement to buttress its border efforts by reducing the pull of employment opportunities that fuel illegal immigration. Border enforcement was never seen as a mission that could succeed by itself. Indeed, Border Patrol agents habitually say they cannot achieve border control, no matter the resources, as long as jobs are waiting on the other side.

Nonetheless, Congress has appropriated money year after year for the border, often in amounts and for expenditures well beyond the requests made by the executive branch. Money that flows to interior enforcement is almost totally for detention and deportation, not for employer verification or enforcement. These are the elements of immigration enforcement around which broad bipartisan support has solidified. That support was demonstrated again after 9-11, when Congress rapidly enacted sweeping border-enforcement provisions to strengthen port-of-entry data systems and procedures and reduce overstays by those with tourist and student visas. The measures include requirements for biometric fingerprint data and electronic tracking of the entry and exit of all visitors to the country.

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Many of these measures have been long overdue. But apart from border measures, on most other aspects of immigration -- and there are many -- there is deep ambivalence and disagreement in our body politic that block reasoned policy making.

The imbalance and ambivalence have had far-reaching, often perverse consequences. At one level, the 1990s border-enforcement strategies achieved their goal. The corridors of highest illegal crossings were closed off, altering long-established patterns of illegal immigration. But this is a case of winning the battle and losing the war.

In the absence of rethinking immigration policy more broadly, border enforcement has not only failed to reduce illegal immigration; it has increased dangers at the border, encouraged migrants to remain permanently in the country once here, and led to an all-time high in the size of the illegal population. Today illegal immigration outpaces legal immigration. The border buildup occurred during one of the country's longest periods of sustained economic growth since World War II. It should not be surprising, therefore, that law enforcement has been inadequate to the market fundamentals of supply and demand.

By asking of border enforcement more than it can deliver, our policy has caused public frustration to reach the boiling point in places like Arizona and given cause to extremist voices that make it all the harder to get to “yes” on the critical choices needed to reach meaningful change. As a result, U.S. policy today is deeply hypocritical, indefensible, and wrongheaded. In practice it says, “We will make it harder and harder to cross the border. But if you take the risk, including the risk of dying, there will be a job if you make it.”

For an IRCA II to provide workable answers, it would have to be informed by hard lessons from past experience. Those lessons include the inadequacy of border enforcement absent a sound, mandatory employer verification and enforcement regime. They also include the imperatives of demography in which the number of native-born young people entering the workforce are no longer enough to meet current and coming labor needs. Immigration policy -- through measures such as legalization and temporary and permanent work-based visas -- can help fill the gaps. At the same time, experience tells us that for such changes to occur, a historic shift would be required in the politics of immigration and the attitudes and interests that animate them.

The stakes are high because the impact on societies of the international movement of people promises to be one of the defining characteristics of the 21st century, not only for the United States but for many nations. Immigration is a force that can contribute to our nation building or deepen our divisions and fears. The debate that is under way gives us a chance to choose.

Doris Meissner is a senior fellow at the Migration Policy Institute. She was the commissioner of the U.S. Immigration and Naturalization Service during the Clinton administration.

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