The last successful comprehensive immigration reform bill celebrated its 30th birthday three days ago, the Immigration Reform and Control Act (IRCA). It was signed into law by Republican President Ronald Reagan on November 6, 1986. According to the statement President Reagan made at the signing ceremony, IRCA was --
The product of one of the longest and most difficult legislative undertakings of recent memory. It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.
Since then, the Senate has passed two major immigration reform bills, but neither has been acceptable to the republicans. On May 25, 2006, the Senate passed the Reid-Kennedy immigration bill, the Comprehensive Immigration Reform Act of 2006, S. 2611, with a vote of 62 yeas and 36 nays. Only 23 republican senators voted for it; the other 32 republicans and four democrats voted against it.
The House republicans conducted hearings on the problems they expected S. 2611 to cause. For instance, on July 27, 2006, the House Subcommittee on Immigration and Border Security held a hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare.” Subcommittee Chairman John Hostettler noted in his opening statement that, “In the Reid-Kennedy bill, the Senate proposes to replace our current rational immigration process with a scheme to allow an unknown number of additional aliens who came here illegally to stay forever.”
On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. It was opposed by 70% of the senate republicans. Only fourteen republicans voted for it; the other 32 voted against it. The House Committee on the Judiciary held a hearing on the bill, “S. 744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?” The opening statement of Committee Chairman Bob Goodlatte included the following reference to IRCA:
The bill [IRCA] provided for three main reforms: legalizing the millions of immigrants already in the country, increasing border enforcement, and instituting penalties for employers who hired unauthorized workers, in order to stop the flow of new unlawful immigrants. These reforms were based on the realization that if Congress simply passed a legalization program we would simply be encouraging future illegal immigration. The Select Commission on Immigration had warned just a few years earlier that without more effective enforcement, legalization could serve as a stimulus to further illegal entry.
Unfortunately, IRCA’s enforcement measures never materialized, and the Commission’s fears were realized. Border security barely improved. Employer penalties were not enforced. Now, 26 years later, all of us who want to fix our broken immigration system are haunted by the legacy of IRCA’s failure, and we have serious concerns that S. 744 repeats some of IRCA’s mistakes.
I believe that if Hillary Clinton had been elected, her immigration policies would not have led to the enactment of a comprehensive immigration reform bill either. Although her heart is in the right place, her policies do not meet the political needs of both parties. President Elect Donald Trump’s policies do not meet the political needs of both parties either, but I predict that he will soon discover that his Ten-Point Immigration Plan cannot be implemented.
For instance, consider point number 8, which is to complete a biometric entry-exit visa tracking system. Under this system, a record is made of a nonimmigrant alien visitor’s entry and again when the visitor leaves. Trump says he will ensure that it is in place at all land, air, and sea ports. This can be done at air and sea ports, but inspection-lane space and inspection time limitations make it virtually impossible at land ports. And feasibility is not the only problem. Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established the first statutory provision for an entry-exit system. I was counsel to the democrats at the hearing for consideration of implementing this provision. We blocked it with a single question, “Would the system have any enforcement value?” The answer was “no.” It would identify alien visitors who had not left the country when their authorized visits were finished, but it would not provide any information on where they are. You would not have any way of finding them. The idea was dropped until the 9/11 Commission brought it back years later.
Consider also his promise to deport the 11 million undocumented aliens, which already has been whittled down to deporting the criminals “and then we’ll see.” It cannot be done. The republicans have never provided the funding or other resources needed for a large-scale, nationwide enforcement program, and they probably never will. Trump intends to hire more enforcement officers, but major increases in detention facilities and immigration courts also would be necessary. DHS currently detains nearly half a million people annually, and the current immigration court backlog reached 521,676 cases in October.
When he realizes that he will not be able to implement his Ten-Point plan, I expect him to turn to the challenge of bringing the two parties together on a comprehensive immigration reform bill. Being an experienced businessman, as opposed to being a politician, I expect him to look for a compromise that would meet the essential needs of both parties instead of trying to achieve an outcome that would advance the agenda of his party. And he can be counted on to implement enforcement and border security provisions. We may see a second Immigration Reform and Control Act, IRCA of 2017.