As President Obama and lawmakers from both parties begin to take their first tentative steps toward again rewriting the nation’s immigration laws, opponents warn that they are repeating the mistakes of the 1986 act, which failed to solve the problems that it set out to address. Critics contend that the law actually contributed to making the situation worse.
An estimated 3 million to 5 million illegal immigrants were living in the United States when the 1986 Immigration Reform and Control Act (IRCA) was passed. Now there are upwards of 11 million. And the question of who gets to be an American, far from being settled, has been inflamed.
The latest proposals contain the same three components as the 1986 law: a legalization program — and a possible path to citizenship — for those who are in the country illegally, stepped-up enforcement along the border, and measures to discourage employers from hiring workers who lack proof of legal residency.
“This is the same old formula we’ve dealt with before, including when it passed in 1986, and that is a promise of enforcement and immediate amnesty,” Sen. David Vitter (R-La.) said last week
on the Laura Ingraham radio show. “And of course, the promises of enforcement never materialize. The amnesty happens immediately, the millisecond the bill is signed into law.”
But immigration experts note that the country has undergone big changes since then. And the experience of what went wrong after 1986 might help policymakers get it right this time.
“There’s just an entirely different mentality,” said Doris Meissner, who was commissioner of the U.S. Immigration and Naturalization Service during the Bill Clinton administration and who now directs immigration policy studies at the nonpartisan Migration Policy Institute.
Technology affords new means of enforcing sanctions against hiring illegal immigrants, for instance, and Americans in the post-9/11 world may have lost some of their squeamishness about carrying tamper-proof government identification or submitting personal information to a national database. Meanwhile, businesses are eager to come up with a legal system of immigration that can more quickly adapt to their constantly changing labor needs.
Still, “the problem is always in the details, and that was certainly true in 1986. Once the debate got into the details, the compromises proved to be counterproductive,” said Susan F. Martin, director of Georgetown University’s Institute for the Study of International Migration, who in the 1990s served as executive director of the bipartisan U.S. Commission on Immigration Reform.
New national circumstances
The most obvious difference between now and a quarter-century ago is demographic. In those days, the Latino vote was not much of a political factor outside a handful of states. Only 3 percent of those who cast ballots in the 1984 presidential election were Hispanic; last year, they made up 10 percent of the electorate. Their growing numbers and increasingly Democratic tilt were considered a crucial factor in Obama’s victory, as well as a serious problem for Republicans in the future.
What also expanded was the national sense of crisis surrounding the issue. At the time the law was passed, Meissner said, illegal immigration had a significant impact in only half a dozen states — New York, New Jersey, Florida, Texas, Illinois and California.
Now, thanks largely to the demand for labor during the economic boom of the 1990s, illegal immigration has become a high-priority issue in virtually every state, including places such as Alabama, Iowa, Georgia and Nebraska.
The most contentious part of the 1986 law was the provision that, for the first time, made it illegal for an employer to knowingly hire a worker who was not in the country legally.
Until then, it had been a felony to harbor an illegal immigrant, but the 1952 “Texas Proviso” stipulated that hiring one did not violate the law. Under the 1986 law, employers who hire undocumented workers are subject to civil penalties of $250 to $10,000 for each of those employees.
What the 1986 act did not provide, however, was any realistic means of enforcing the new requirements for employers, which is why they were and are rarely punished.
In fiscal 2006, for instance, not a single employer was fined, according to statistics compiled by U.S. Immigration and Customs Enforcement. The Obama administration has cracked down more vigorously, but the chances of getting caught and punished for hiring an illegal immigrant are still relatively low. In fiscal 2011, ICE issued 385 notifications of intent to fine employers, collecting a total of $10,463,988.
Why so little enforcement, when the practice of hiring illegal immigrants is so widespread? Wouldn’t it be enough to just follow the law that is already on the books?
Those questions come up every time there is talk of immigration reform, most recently seven years ago.
“One answer is that there are never enough federal budget resources,” the law’s authors, former congressman Romano L. Mazzoli (D-Ky.) and former senator Alan K. Simpson (R-Wyo.), wrote in The Washington Post in 2006.
“Another is that administrations of both stripes are loath to disrupt economic activities — i.e., labor supply in factories, farms and businesses,” they added. “And we know that disruptions in the labor supply are the natural, unavoidable and even desirable consequence of strong border and workplace enforcement.”
One of the law’s most glaring deficiencies was that it did not stipulate or provide a secure means by which businesses could verify the legal status of those they hired. Instead, it listed dozens of documents that could be used — most of them easily falsified.
“You had a wink-and-a-nod system, where the employer was in compliance and the [illegal immigrant] could find a job,” Meissner said.
“The only real beneficiaries of some of the IRCA reforms was the counterfeiting industry,” Martin added.
Simpson and Mazzoli had advocated a new “identifier,” using biometrics or tamper-proof cards. But something so close to a national ID card drew opposition from civil libertarians on the left and the right, as well as concerns about the practicality of issuing new identification to 250 million Americans.
That issue, however, is certain to be revisited.
The set of principles drawn up by a bipartisan group of senators, which is expected to serve as a starting point for comprehensive immigration overhaul, promises: “Our proposal will create an effective employment verification system which prevents identity theft and ends the hiring of future unauthorized workers.”
That would include coming up with what the senators described as “non-forgeable electronic means” to determine an employee’s legal status before he or she is hired.
Questions about legal entry
Another area where past reform efforts — including the 1986 law — have fallen short is on the question of legal immigration.
Unlike many politicians of both parties today, Reagan was unafraid to use the most loaded word in the immigration debate.
“I believe in the idea of amnesty for those who have put down roots and who have lived here, even though some time back, they may have entered illegally,” Reagan said during a 1984 presidential debate.
The law offered legalization to those who had been in the country for at least five years but excluded those who had resided here more briefly — leaving what Meissner called “a nucleus of today’s illegal population.”
If a new legalization measure is passed, experts say, it is likely to give amnesty to those who entered the country illegally much closer to the moment that a bill is enacted.
More important, the 1986 law did nothing to address the future flow of immigrants, which increased dramatically during the next decade’s economic boom.
A 1990 law did increase the limits on legal immigration. But those quotas did not keep pace with the drastic changes in the labor market or the desire of many immigrants to reunite with family members they had left behind.
Revamping the legal immigration system is an area that has had little debate. The key, experts said, will be coming up with a system that can accurately gauge the demands of the labor market, sorting out actual labor shortages from cases in which businesses are simply unwilling to pay enough to attract legal residents.
“We have no mechanisms to make rapid changes in the legal immigration system, to meet family demands and to meet employer demands,” Martin said. “If it continues to fail, people will find a way around it.”