When it comes to immigration reform, we all know what conservatives are against. We are against the 2012 Deferred Action for Childhood Arrivals program. We are against the 2013 Gang of Eight bill. And we are against the 2014 Deferred Action for Parental Accountability program.
But what are we for? The system is clearly broken. It takes way too long for law-abiding immigrants to become citizens, the wealthy and powerful game the system for their friends, and, now that the economy is revering, the number of illegal immigrants is rising again.
Sure every conservative wants to "secure the border." But when it comes to how that should be done (a wall, mandatory e-verify, doubling the border patrol, etc.), consensus quickly falls apart. And don't even ask about what to do with those illegal immigrants already in the country.
Establishment Republicans are locked into the amnesty-for-enforcement model. Details may vary but the plans are still fundamentally the same: Devote more resources to some border security efforts now ("secure the border") and then grant legal status to the 11 million illegal immigrants currently in the United States.
There are two main problems with this position.
First, border security is not a one-and-done proposition. It is not like going to the moon. "Securing the border" will always be an ongoing process. You could build a wall. But then that wall has to be maintained, improved, and monitored. Even then, roughly 45 percent of illegal immigrants currently in the United States entered legally with a visa, and then overstayed that visa. A wall to keep illegal immigrants out is worthless if you let half of them in legally.
Second, it is not fair or credible to pick some arbitrary date and say every illegal immigrant in the United States before said date will be put on a path to citizenship, but every immigrant who comes after said date will be deported. Such a policy is not fair to those immigrants who are patiently going through the existing legal immigration process and potential immigrants have no reason to believe that if we don't have the political will to deport people today, we will somehow magically find the will to do it tomorrow.
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So if amnesty-now-for-enforcement-later is not a workable immigration solution, what is?
Before we get to what the specifics of such a policy could look like, here are some principles which should guide us.
Security - The first duty of any government is to protect its citizens. That is why security must be the first principle of immigration reform. The federal government must prioritize preventing national security threats from entering the country and deporting them when they are found already in the country. Threats to public safety (like violent criminals and felons) must also be deported whenever they are found as well.
Equality - We must treat all immigrants equally no matter what country the come from or when they arrived. Treating all nationalities equally is part of our founding creed, and it is simply not credible public policy to treat some immigrants differently based solely on when they arrived in the country.
Family - Nobody likes to break up families. Everyone has empathy for those who are in this country already and are struggling to keep their families together. Deporting otherwise law-abiding family members of legal U.S. residents, who present no threat to national security or public safety, is simply not politically sustainable. The American people just do not have the political will to do it. It is time everyone admitted this, especially proponents of legalization who claim they want to deport illegal immigrants who fail to pay a fine, fail an English test, or lose a job.
Prosperity - Our immigration policies should help all Americans prosper, not just employers looking for cheap labor. That is why it is important that we raise the costs for employers to hire illegal immigrants. But we must also seek to minimize the regulatory costs for employers who do want to hire U.S. citizens.
Simplicity - Lawyers, lobbyists, and community activists are the only ones who gain from a complicated immigration system. The simpler the rules are, the better everyone understands them and the more likely it is that everyone follows them.
The challenge of immigration policy is finding the most politically sustainable way for raising the cost of entering or staying in the United States illegally without unduly burdening our economy
For centuries the Atlantic and Pacific oceans mostly did this job for us. It was expensive to get here and information about where to go once you got here was hard to come by. But, as technology has improved, it is now far easier and cheaper to travel great distances. Thanks to technology it is also far easier to find jobs in the United States from thousands of miles away and it is also far easier to send the money earned in the United States back home. Since technological growth shows no signs of slowing, especially on the transportation and communications fronts, the trend of more people trying to enter, live, and work in the United States will only grow.
This is yet another reason why the amnesty-now-for-enforcement-later policy framework is destined to fail again as it already failed after it was tried in 1986. The main mechanism that we have for controlling illegal immigration, deportation, simply isn't working. Except for demonstrable national security or public safety threats, the political will just isn't there to deport anyone.
There is no comprehensive package of policies that can solve this problem. But there are some incremental steps we can take to better align everyone's incentives.
Turn Unauthorized Immigrants Away At The Border - One of the driving forces behind the 2014 border crisis was the Bush administration policy of turning away illegal immigrants from Mexico at the southern border, but taking in immigrants from all other countries. Smugglers figured out that if they could overwhelm a section of the border with illegal immigrants from a country other than Mexico, then Customs and Border Protection would be forced to release those illegal immigrants in the United States. That is why you had illegal immigrants flagging down border patrol agents. They wanted to be caught! You can have the biggest wall in the world but it is worthless unless we treat everyone equally and turn all illegal immigrants away.
Require Visa Holders To Post Bond When They Enter The Country - Not only did more than 40 percent of all illegal immigrants currently in the United States first enter on a legal visa, but visa-overstayers are also the driving force behind the recent rise in illegal immigration. The Department of Homeland Security should absolutely develop a comprehensive system for tracking visa holder entry and exit, but that is not enough. Who will track all the visa overstayers down? Who will deport them? How do we know if future presidents will be diligent about updating the system and tracking overstayers down? Conservatives can improve the chance that immigrants will honor their visa terms by making them or their sponsoring employer or educational institution post a bond, say $50,000 when they enter. When said visa holder then leaves, they, or their sponsoring institution, can get their money back. But if they don't then taxpayers get to keep the money.
Tax Remittances - How did Jeb Bush put it? Illegal immigration is "an act of love." "They come to our country because their families, the dad who loved their children," Bush said, "was worried that their children didn’t have food on the table." And he's right. Most illegal immigrants do come to this country to earn money that they can then send back home to their families. But when illegal immigrants take those jobs, they drive down the wages for U.S. citizens with similar skills. And when they send their earnings home, that is money that is escaping the U.S. economy and helping another country's economy. U.S. immigration policy should serve U.S. workers and the U.S. economy. Immigrants sent more than $120 billion a year back to their home countries. We should raise taxes on remittances out of the United States and use that revenue to cut the payroll tax for all working Americans.
Allow Injured Parties To Get Compensation From Employers Who Hire Illegal Immigrants - E-Verify is a highly successful program that empowers employers to check the legal status of their potential employees. Any conservative immigration policy should make E-Verify mandatory. But even in states that already have mandatory E-Verify laws, compliance is often spotty. And enforcement would depend entirely on whoever was in the White House. A president controlled by the Chamber of Commerce and/or amnesty activists wold not enforce an E-Verify law. That is why U.S. Citizens must be empowered to hold employers who hire illegal immigrants accountable. A federal cause of action could be created allowing anyone who could show they were harmed by the hiring of an illegal immigrant, through a loss of job or decreased wages, to collect damages from an employer who is proved to have hired an illegal immigrant.
Create a Z Visa For Non-Security Threats - No border security system will be perfect. No visa tracking system will be perfect. No E-Verify system will be perfect. As long as the United States is the best country on Earth immigrants will always come here in greater numbers than the system can handle. So what should we do with those that are here illegally? The easy answer is "deport them all" but history has shown that that is just politically and practically impossible. The current establishment answer, both on the right and left, is for serial amnesty. We give those in the country here now a path to citizenship, promise to deport all illegal immigrants in the future, and then when we don't deport those future illegal immigrants, we give them amnesty too. Wash, rinse, repeat. This approach is dishonest and undermines the rule of law.
Instead, we should create an alternative to deportation. Every illegal immigrant would still have to go through a deportation process, and those who were found to be threats to public safety or national security would still be deported. But for those who were not threats to public safety, they could be issued a Z Visa granting them protection from deportation. This new Z Visa would not entitle anyone to a work permit, a Social Security number, or a driver's license, but it would allow them to remain with their families.
None of the above policy ideas are dependent on one another. All could be implemented one-by-one in a piecemeal process. Even if they all became law our immigration system would still not be perfect. But it would function far better than it does today.
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