In 1986, three million illegal immigrants in the United States were given the right to become citizens. It was a full-scale amnesty, created by a bipartisan majority in Congress and signed into law by President Reagan. It had one big flaw.
The amnesty went into effect immediately. And strong measures to secure the border with Mexico and prosecute employers who hired illegals were to follow. The goal was to stop illegal immigration once and for all, while allowing those here illegally to stay.
But strengthened enforcement never happened—that was the flaw—and the bill produced a perverse result. Rather than halt the flow of illegal immigrants, the 1986 law actually spurred millions more to come. Crossing the border was easy, jobs were plentiful, and the chance of being deported was slim, including for those who overstayed their temporary visas.
Now, with 11 million illegals in the country, the 1986 law is anything but forgotten. It has given opponents of comprehensive immigration reform a potent argument for modifying the Senate bill drafted by the so-called Gang of Eight (four Democrats and four Republicans) or killing it altogether.
When the Senate Judiciary Committee met last week to begin considering the bill, the 1986 legislation was the first matter to come up. “This bill looks too much like the 1986 bill,” Sen. Chuck Grassley said. He is the senior Republican on the committee.
Grassley was a freshman senator from Iowa in 1986 and voted for the law, known as Simpson-Mazzoli after its cosponsors, Republican senator Alan Simpson of Wyoming and Democratic representative Romano Mazzoli of Kentucky. “I was one of those who made that mistake,” he said. “I don’t want to make that mistake again.”
Grassley objected to the provision in the Gang of Eight’s bill that would give the 11 million legal status when the bill goes into effect—that is, before the border security and enforcement parts are fully implemented. So did Alabama’s Jeff Sessions: “This is how we got taken to the cleaners” in 1986, he grumbled.
“If we pass the bill as is, there will be no pressure on this administration or a future administration or those in Congress to secure the border,” Grassley said. “There will be no push by the legalization advocates to get that job done. We need to get together to secure the border first. . . . The American people have a right to demand we get it right this time.”
His remedy is to require the secretary of homeland security to certify the border has been under effective control for six months. Then, the 11 million could become “resident provisional immigrants” legally in the United States and free from being deported. To achieve such control, the border would need “100 percent visibility” by the border patrol and a capture rate of 90 percent of border crossers.
The response of the bill’s backers on the judiciary committee—10 Democrats, 2 Republicans—was less than compelling. Democrat Dianne Feinstein of California noted how much border security has been improved. “I’m amazed at the progress being made.” Republican Jeff Flake of Arizona, a member of the Gang of Eight, said illegal residents live “in the shadows, and we’ve got to bring them out. To delay that process would not be the right approach.” Democrat Chuck Schumer of New York claimed the requirement to secure the border first “would delay probably forever bringing people out of the shadows.”
Perhaps Republican Marco Rubio of Florida, the chief spokesman for the Gang of Eight, could have defended the bill more persuasively. But he can’t participate in the “markup” of the bill. He’s not a member of the committee.
When the committee voted, Grassley’s amendment lost, 12-6. But the issue of the 1986 law and delaying legalization until the border is secure won’t go away. On the day of the markup, I interviewed Republican Bob Goodlatte of Virginia, chairman of the House Judiciary Committee. Even before I asked a question, he said, “We need to learn the lesson of the 1986 legislation.”
That means adopting the Grassley approach. House Republicans are wedded to the idea of “border security first, legalization second.” And Goodlatte said he wants to produce an immigration bill—or a series of bills—that most House Republicans will vote for. That’s probably impossible unless legalization is delayed.
But here’s the rub. Democrats are insistent on legalization first. That’s why it’s part of the Gang of Eight’s bill. That’s why a House group, also four Democrats and four Republicans, hasn’t reached agreement on a bipartisan measure.
Homeland Security secretary Janet Napolitano is no help. Republican senator John Cornyn of Texas accused her of declaring victory in the effort to secure the border. What she actually said was this: The border “is as secure now as it has ever been.” Nobody believes that, Cornyn said. None of the Democrats jumped to her defense.
She is distrusted, at least by Republicans. So is Obama, who has sharply narrowed enforcement of current immigration laws. Ignoring Congress on immigration isn’t new. Goodlatte cited a 1995 law authorizing an electronic system to flag expired visa holders. “That’s never been put into effect,” he said. The same point was made repeatedly at the Senate session.
The bipartisan Senate bill will surely survive the skepticism of Republicans on the Judiciary Committee. But its advocates need to find better answers to questions raised by critics, Jeff Sessions in particular.
Sessions is tough and smart and always prepared for debate. He asked Schumer, “Do you dispute the fact that we will probably legalize over 30 million [immigrants] in the next 10 years?” “Yes, I do,” Schumer said. Okay, Sessions replied, what’s the correct number? He never got an answer.
Fred Barnes is executive editor of The Weekly Standard.