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Keeping undocumented immigrants off the dole is easier said than done

Sen. Orrin Hatch (R-Utah) voted for the bill in committee but could still reject the final legislation. (AP Photo/Cliff Owen)

It hasn't been the best week for comprehensive immigration reform. David Drucker at the Washington Examiner reported that House Speaker John Boehner will not bring an immigration bill to the floor that doesn't have the support of most Republicans.That would rule out a path to passage in which a faction of the Republican House members break off from the party line to join the pro-immigrant Democrats. Add on a gaffe by an aide to Sen. Marco Rubio (R-Fla.), who said that American workers "just can't cut it" at some jobs, and the pro-reform side is having a rough go of things.

But before the House maneuvering gets underway, the bill needs to get through the Senate. And some proposed amendments are putting passage in that chamber in jeopardy, too. Marshall Fitz, a major player in the 2006-2007 immigration battles who now runs immigration policy at the Center for American Progress, has said he considers the "three Bs" to be the biggest threats to passing a reform bill: "border security, benefits and biometrics."

The Hatch/Rubio amendments

A new report by the Center for Budget and Policy Priorities highlights amendments by Rubio, and Sens. Orrin Hatch (R-Utah) and Jeff Sessions (R-Ala). (Sessions's amendments were rejected in committee, and he's likely to oppose the bill.)

Rubio is a Gang of Eight member, and Hatch voted for the bill in committee, but both have signaled that their support is tentative and that they could oppose the final bill. The lawmakers have three amendments that deal with benefits. The first prevents Social Security and Medicare taxes paid by undocumented immigrants who are then legalized from counting toward benefits upon those citizens' retirement.

The second would ban formerly undocumented immigrants from receiving exchange subsidies under Obamacare for the first five years after they become lawful permanent residents. The bill as written denies subsidies to formerly undocumented immigrants who have not yet become permanent residents but allows permanent residents — such as permanent residents who were never here illegally — to receive the subsidies.

The third would require undocumented workers applying for legal status to not just pay back taxes but to prove that they have paid the full amount owed, including the employer share of the payroll tax if their employers had not withheld that share.

Can they work?

It's easy to see why some would support these amendments. It may seem unfair for taxes paid while here illegally to count for future benefits, or for formerly undocumented workers to get health care subsidies. Asking for full documentation of taxes owed seems like common sense. But CBPP argues that all three amendments would make the whole bill unworkable.

Let's take Social Security and Medicare. CBPP objects to the entire premise, saying that not allowing those earlier benefits to count toward retirement would leave the now-lawful residents "vulnerable to serious hardship if they became ill or developed a severe disability and were unable to work long enough to meet Social Security and Medicare’s work-history requirements."

The bigger problem, CBPP says, is that the amendment requires the Social Security Administration to deny credit for any quarter of work by a non-native American who got a Social Security card after 2004 unless the SSA can prove that that person worked that quarter. "The amendment is unworkable; neither SSA nor the Department of Homeland Security has the records to make such determinations accurately for tens of millions of quarters," Sharon Parrott and Robert Greenstein conclude.

What about the health subsidies ban? Like Social Security and Medicare, CBPP objects to the premise. "This approach would create a two-tier health care system where some legal immigrants with LPR [lawful permanent resident] status would lack access to health coverage for an additional five years while other legal immigrants would be able to obtain coverage," they write.

And the proving-back-taxes amendment? "Many currently undocumented workers simply will not have — or be able to obtain — the records to prove they have paid all prior taxes or to retroactively file a tax return, which would leave them without a mechanism for converting to legal status and paying their taxes going forward," write Parrott and Greenstein .

Hatch has challenged that point. "Some have already claimed it would be impossible to enforce because the applicants won’t be able to determine what they owe in back taxes," he said on the Senate floor. "This too is extremely misguided. The IRS is well experienced at estimating the tax liabilities for people who, for whatever reason, lack the records that normally support a tax return."

CBPP counters that such audits are rare and generally reserved for cases of high-income people whose spending patterns don't match their income. "The IRS has never used this method for large numbers of low-income workers," they note.

Will they matter?

There may be room for compromise on the back taxes and Social Security/Medicare amendments. For example, one could pair Hatch's amendment with a funding increase to the Internal Revenue Service to pay for the audits it would require. Or, lawmakers don't want to boost funding to an agency embroiled in controversy, the plan could be paired with a broader switch to automatic tax returns prepared for households by the IRS, as proposed by Austan Goolsbee, former chairman of the administration's Council of Economic Advisers. The households could send the returns in unaltered or change them if they don't like the IRS preparation. Similarly, one could tighten the Social Security amendment so that it only targets only newly legalized immigrants, not all non-natives.

But the conflicts over eligibility for Obamacare subsidies and Social Security/Medicare could be more intractable. The question of whether unauthorized immigrants should be able to get public money for health care, or get retirement money based on work they did while in the country illegally, isn't a technical one. It's a moral and ethical one on which those concerned primarily with the welfare of poor immigrants and those concerned primarily with ensuring that legal processes are fair and don't reward certain behavior, are bound to disagree.

Whether those camps can reach a middle ground that isn't too offensive to either side could determine whether the whole bill lives or dies.