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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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.