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Still Baffled by Immigration

The immigration deal will not work, and it's hard to believe that the Senate negotiators honestly think otherwise.

In a previous column (see "The Baffling Politics of Immigration," 5/12/07, p. 20), I brusquely dismissed the "grand bargain" on immigration that was about to emerge from months of bipartisan talks in the Senate. Republican Sen. Arlen Specter of Pennsylvania had given an outline of the deal to reporters. "If the measure he sketched really is a breakthrough grand bargain," I wrote, "please don't show me any squalid phony compromises."

On reflection, and now that the actual bill is before the Senate, I would like to withdraw the word "squalid." That was over the top, and I apologize.

"Phony," I stand by.

The measure before the Senate instantly attracted fire from all sides. That was bound to happen, and is no reflection on the quality of the bill. To the contrary, to be attacked by anti-immigrant zealots and pro-immigrant zealots is a good sign. It would have been a bad sign if all the howls had come from only one side. The proposal is a good-faith effort by the negotiators from the Democratic and Republican parties, and from the White House, who have labored at this task for months.

The reformers are right that a comprehensive measure of the general kind they propose is needed. The current system is a shambles—about the only thing that everybody who addresses this issue can agree on. Unlike their most vocal critics, the Senate negotiators all showed a willingness to compromise, and without that, nothing will get done. On top of all this, the basic elements of the plan they set out are not wrong. Intelligent reform requires separate but coordinated pieces to deal with illegal immigrants already here, future immigrants, and security at the border. The bill contains all three carefully crafted elements.

Well, again, I should not have said "squalid." But all the sincere effort and spirit of compromise in the world will not make a bad law a good law—not even if that bad law is better than a bunch of even worse ideas now circulating. This bill will not work, and I find it hard to accept that the Senate negotiators honestly believe otherwise. Take a moment to consider how the three parts of the Senate grand bargain, if it is enacted without amendment, would actually function.

The first component is border security. The bill calls for an increase of 18,000 in the Border Patrol; 200 miles of new vehicle barriers and another 400 miles of fencing; 70 ground-based surveillance towers along the border with Mexico; deployment of four pilotless aircraft and related ground systems; facilities for the detention of 27,500 illegals a day; and the introduction of new identification procedures and technologies to stop unauthorized workers from getting jobs. It is quite a list. How long to accomplish it? The Homeland Security Department says 18 months. With all due regard for the celebrated efficiency of that department, I would allow a bit longer.

If all this were done, would the border then be secure? This must be doubtful. Just how far such measures would reduce the inflow of illegal immigrants from Central and South America is hard to say, but you would have to be an optimist to believe that the border won't leak once all this is in hand. And that matters because the law makes no provision for dealing with a continuing substantial inflow of illegal migrants, except to instruct that they be detained and deported.

Other aspects of the law, to which we will turn in a moment, give illegal workers already in the United States an option to remain on a legal basis, but only if they were here before the start of this year. Tens of thousands, maybe hundreds of thousands, of new illegal immigrants have arrived since then. Thus each passing month adds to the numbers that the law insists must be sent home—and the number is going to keep on rising, even if the pace slows once the new border measures are up and running. This is especially likely if the restrictions on legal entry going forward are too tight (as I will argue in a moment they are).

So consider. One of the things the bill purports to recognize is that mass deportation of the 12 million illegal immigrants thought to be in the country is both impractical and undesirable (not least because of the effects on the U.S. economy). But is the mass deportation of, say, a million immigrants, or 2 million, much more practical or desirable? This is the outcome that the bill implicitly envisages even if, in every other respect, all goes to plan. Multiply that by two, on a very conservative estimate, for the illegal immigrants already here who opt not to apply for legal status under the terms of the new law. Add a hundred thousand a year, maybe, for new illegal immigrants who manage to slip through even after the border has been strengthened. In other words, suppose the bill is enacted: Ten years from now, what has been gained?

A key part of the new law is certification by Homeland Security that the new border measures are in place. Only then do new visa schemes for existing illegals and future guest workers kick in. That is a puzzling notion in its own right. Because the border leaks so much, why not allow some of the immigrants who are coming anyway to arrive on a legal basis starting now, and take steps to tighten the border in the meantime?

The answer is politics: The framers of the compromise want to underline how tough they are being on illegal immigrants by saying the border measures must come first. But the sequencing makes no sense. Surely the right approach, on their own analysis, would be to say, "Make the border secure as fast as possible, and until then set rules that allow for the fact that the border still leaks." Instead they are saying, "Make the border secure as fast as possible, and in the meantime let's pretend it already is."

The provisions to legalize existing illegal workers have predictably aroused cries of "amnesty." Put to one side the issue of whether amnesties are always a bad idea. What the Senate bill offers existing illegal workers is plainly not an amnesty. It calls for fines and charges of $5,000. Considering what unskilled immigrant workers make, that seems a more than adequate punishment if your only crime was to come here and work.

Moreover, in return for paying the fine—and identifying themselves to the authorities—these workers are not promised secure legal status. All they get in the first instance is temporary permission to stay and the right to apply for a new Z visa. Who knows whether those applications will succeed—or when, since Z visas would not be issued until the secure-border "triggers" had been activated. If the idea is to get qualifying illegal immigrants (guilty of no other crimes) onto a secure legal footing, it might take more than this—unless and until America finds the will and the means to deport millions of workers.

In addition, the proposed law creates a Y visa for temporary workers. This, too, is far from luxurious dispensation. Workers would be allowed a maximum of three spells of two years working in the United States, with a year abroad after each spell. After that, no more temporary work in the United States. Provision for accompanying close relatives would be minimal. Y visa workers bringing dependents with them would get one two-year spell only. The illegal route is still going to look very tempting, if this is the best alternative. That border better be secured.

The bill is not as bad as it might have been, and not as bad is it may get in the coming days—but this does not make it a good bill. It is too harsh, both to illegals already here and to tomorrow's would-be immigrants. It is harsher than it ought to be to secure the maximum economic benefits of immigration for the country. And it is harsher than it can afford to be if it is to be properly enforceable: Too strict a regime forces too much reliance on fallible border security.

Plainly, the flow of new arrivals has to be restricted and regulated. There is no argument about this. But the right strategy has to recognize the practical limits in a free country to securing the border, and balance efforts in that direction with a visa regime that meets the country's economic needs while lessening the incentives to migrate illegally. It is not an easy balance to strike, but the Senate bill isn't even close. And, yes, I say this knowing that after a spell of debate and amendment, the original "grand bargain" might seem, by comparison, a pearl of legislative wisdom.