The Magazine

Bordering on a Policy

From the August 15 / August 22, 2004 issue: Is there an agreement in the works on immigration?

Aug 15, 2005, Vol. 10, No. 45 • By TAMAR JACOBY
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SENATORS JOHN MCCAIN AND JON Kyl, both Arizona Republicans, have an unstated agreement not to criticize each other in public. But now each has introduced legislation to reform the immigration system. The two bills are competing head to head. And when the two men appeared together last month at a Senate hearing, McCain could not resist.

It "borders on fantasy," he said scathingly, to expect the estimated 11 million illegal immigrants in the United States to sign up for a guest worker program that would compel them to leave the country, as the bill introduced in July by Senators Kyl and John Cornyn would require. "'Report to deport,'" McCain went on, using dismissive slang for the Cornyn-Kyl provision, "is not a reality and it isn't workable."

By the standards of the Senate, it was a blunt, angry exchange, and there will surely be more like it in the months to come as Congress wrestles with these two proposals on one of the most controversial issues facing the nation. Still, despite the fireworks--and even with politicians as diverse as President Bush, House Speaker Dennis Hastert, and Senators Kyl, Cornyn, McCain, and Edward Kennedy weighing in--there is much more consensus on immigration than is generally recognized.

We're not quite at the point yet where, as is said about the Israeli-Palestinian problem, "everyone knows what the solution is--the only difficulty is getting there." But there is increasing agreement about the contours of the problem and even about critical elements of the solution.

The emerging consensus starts with a shared grasp not just that the system is broken, but also why its breakdown is unacceptable to Americans: because of what it means for the rule of law and for our national security.

Gone are the days when one side in the debate was concerned about immigrants and the other about angry native-born voters--when one side wanted expansive annual quotas and the other wanted tighter control over the system. Today, reformers as different as Kyl and Kennedy (cosponsor of the McCain legislation) recognize that robust immigration is a boon to the U.S. economy, but that we must construct a system--a more regulated, orderly system--that permits foreign workers to enter the country in a lawful manner. Both sides recognize that we need immigrants and the rule of law--that we need foreign workers, but also control. The war on terrorism demands this better control, and so, increasingly, does the public. From the Minutemen volunteers on the Arizona border to angry suburbanites in Herndon, Virginia, and on Long Island, voters are expressing frustration, and lawmakers in both parties know they must respond.

Second, and even more encouraging, politicians as far apart as the president and Senator Kennedy grasp the paradoxical nature of the remedy: namely, that the best way to deliver control is not, as many reflexively think, to crack down harder, but rather to expand the channels through which immigrant workers can enter the country legally. This consensus is reflected in the competing bills in the Senate, and it is at the heart of the White House's position (a position reiterated in recent weeks in a series of private meetings with legislators). All of the current reform proposals rest on two central pillars: a guest worker program and much tougher enforcement.

Expand legal channels in order to get control? Yes, it's counterintuitive, but it isn't as illogical as it sounds. Given our economy's deep and increasing dependence on foreign workers, we will never get a grip if we continue to pretend they aren't coming. Our only hope is to own up to our labor needs and--instead of casting a blind eye while people enter the country illegally--provide an orderly program that allows them to live and work on the right side of the law. Of course, we will also need to make sure that foreigners use these new legal channels and no others: Once we replace our old unrealistic quotas with a more realistic guest worker program, we will need to enforce it to the letter, with every means at our disposal. But together, a temporary worker program combined with tough enforcement ought to work to replace the current illegal flow with a legal one, delivering both the workers we need and the rule of law, too.

To be sure, there are still plenty of people who don't buy into this consensus. Not just restrictionists like Rep. Tom Tancredo, but also many mainstream Republicans, particularly in the House, seem to think that we can fix the problem simply by cracking down--without a guest worker program. One of the major battles to come will pit these "enforcement-only" folks against reformers who understand the paradox of liberalizing to get control. And even within the reform camp, the months ahead will bring no end of skirmishes.

The two Senate proposals have temporarily polarized the debate, with anti-immigrant groups like the Federation for American Immigration Reform coming out in favor of Cornyn-Kyl and most reformers, whether in business, labor, or the Hispanic community, deriding it in favor of McCain-Kennedy. This is partly because of the bills' difference in emphasis. The McCain-Kennedy package appeals most to those focused primarily on creating legal channels. (The Cornyn-Kyl guest worker program--which has foreigners working here for two years, then going home for a year, then coming back for another two-year stint, then going home again before a final two years in the United States--is just too convoluted to fly with either employers or employees.) And the Republican package has the edge among those concerned most about enforcement. (It promises more men, more dollars, and more control, both on the border and in the workplace.)

Still, despite these contrasts, what the two bills have in common is more important than their differences. Even as they tussle, policymakers are beginning to recognize their shared ground: Pressured by Cornyn-Kyl, for example, both McCain and Kennedy are now talking about tougher enforcement. The Senate could do worse than start by combining the McCain-Kennedy guest worker program with the enforcement title of the Cornyn-Kyl bill.

Even that, of course, would still leave the most difficult issue: what to do about the 11 million illegal immigrants already in the country. This is the aspect of the problem that gets the most attention, and it is by far the most emotional--the most morally fraught and deeply politicized. Here, too, McCain-Kennedy and Cornyn-Kyl could not sound more different. McCain-Kennedy allows the 11 million to earn their way out of the shadows while remaining in the United States: They must pay a $2,000 fine and all back taxes, then work and study English and civics for six years before they can apply for permanent status. Cornyn-Kyl insists they go home and apply there for permission to come back.

But for all the passion it generates, this is only a one-time, transitional problem--not nearly as important in the long term as the outlines of a new, lawful system, on which agreement is growing. And even in the matter of the existing illegals, there is increasing concurrence about the nature of the problem.

As Cornyn described the challenge recently, sounding for all the world like McCain or Kennedy, "We have to find some way to transition this population into legal status." Everyone who's serious about fixing the status quo agrees: We cannot build a new, lawful immigration system on top of an illegal foundation, cannot deliver control and legality unless we eliminate our vast underground economy. For our own sake--for reasons of national security and the rule of law--we must come to terms with this shadow world. But we cannot realistically compel 11 million people to leave the country: American business depends on them, and the American public is not going to stomach their forcible deportation. Besides, after years--sometimes decades--in the United States, many of these workers have put down roots, buying homes and businesses, giving birth to children who are citizens. As even Cornyn recognizes (in his speeches, if not in his bill), punitive demands that they go home will only drive them further underground.

There is nothing like a consensus yet on how to handle this conundrum: One man's answer is still another man's amnesty. But sooner or later we all will have to face the fact that most of the 11 million are here to stay, and it is in our interest as much as theirs for us to find a way for them to do so legally. There is simply no practical alternative. The only real question before us is how to structure the transition.

How long will it take for this understanding to dawn and for policymakers to converge on a politically palatable answer? We could easily spend the next decade fighting over particulars. Or we could realize just how close we are and how many of the important questions we have already answered--and Congress and the president could come together and enact reform before the 2006 elections.

Tamar Jacoby is a senior fellow at the Manhattan Institute.