The immigration bill being debated in the Senate is the product of Harry Reid's (D-NV) office, which has been the key power broker of participation-hence the role of Senator Ted Kennedy (D-MA) and others close to Reid's rise to leadership. More recently, Senator Arlen Specter (R-PA) has joined in pushing for bipartisan passage.
It is not the "President's Bill", although he has certainly endorsed it. It is a product of Congress. Specifically, it reflects the particular philosophical and economic values of the Senate coalition behind the bill and of those who have amended it (and continue to amend it).
The key balancing fulcrum is between Kennedy-who has long favored amnesty for illegal immigrants-and Senator Jon Kyl (R-AZ) who, until recently, had opposed amnesty.
The bill's formal name is Senate Bill 1639, "The Secure Borders, Economic Opportunity and Immigration Reform Act of 2007." Since the bipartisan group of Senators represents the full political spectrum, it's not surprising that the title incorporates terms that capture the goals of all. Mainstream America, and especially politically conservative voters, are hoping that the result will improve border security, so that is the lead term. Secure borders will certainly be necessary, as the economic opportunity provided through the amnesty and generous guest worker provisions will undoubtedly motivate many more people to attempt to enter the United States illegally and await their opportunity to gain amnesty.
The bill's declared purpose is "To provide for comprehensive immigration reform and for other purposes", and some of the other purposes are very far from immigration reform. An entire title VIII is added to address those purposes, most of which have to do with a European-American Commission to examine the enumerated misdeeds of the United States during World War II toward Italians and Germans who were U.S. residents subject to internment, and Jews fleeing Hitler who were denied entry as refugees-by no means inappropriate.
Effective Triggers as a Prelude to Amnesty
Title I requires the Secretary of Homeland Security to certify that a set of benchmarks have been met before the guest worker programs (Title IV) and the expansive amnesty programs (Title VI) for people already illegally resident in the United States can be activated. There is a huge exception, however, as "temporary amnesty", also known as "probationary Z status", is effective upon enactment (when the President signs the bill) for Z workers, also known as illegal immigrants. Title I also includes authorities and resources to augment border security, much of which could be alternatively authorized under presidential directives had the President chosen to more rigorously strengthen border security prior to this bill.
The date triggers are interesting to those who champion amnesty, but they stand the risk of becoming irrelevant once the process of issuing probationary Z status to the millions of illegal aliens begins. That process will have its own momentum, and once there are four or five million "probationary Z workers" signed up with Homeland Security's (DHS) immigration offices, immense political pressure will be generated. There are still "dormant" enforcement laws on the books from the 1986 amnesty, especially provisions to use the power of the Internal Revenue Service to identify, investigate and penalize employers of illegal workers. The IRS employer sanction requirements were to be implemented by a 1989 deadline, and 18 years later, the IRS is still working on a final draft of the regulations. So much for the executive branch enforcing the law.
The Secure Borders part of the bill is front and center in Title I. The "key" trigger requirement to be met is Provision (1): "OPERATIONAL CONTROL OF THE INTERNATIONAL BORDER WITH MEXICO.-The Secretary of Homeland Security has established and demonstrated operational control of 100 percent of the international land border between the United States and Mexico, including the ability to monitor such border through available methods and technology."
This provision deserves a hard look, because with a term as intangible as "operational control", victory can be declared at any time without metrics to substantiate that claim. The Border Security precondition for amnesty is further delineated, as Title I requires the secretary to certify that certain benchmarks have been met before the guest worker programs in Title IV and the programs in Title VI begin. However, a very large exception is made for the admission of aliens with foreign-student status wishing to change visa status to gain U.S. employment and probationary Z status for Z workers is effective with enactment.
The president has been pitching support for the senate bill, and pundits note that, under the bill, people caught crossing the border illegally will be permanently barred from returning to the United States on a work or tourist visa. Those known to have taken part in illegal gang activity can be denied admission and aliens who are dangerous criminals can be detained until another country accepts them.1 Guess what? The existing Immigration and Naturalization Act (INA), together with other federal criminal statutes already provides equivalent statutes! However, the approach taken by the bill is intended to ensure that a degree of stronger border security takes place before the amnesty and expanded guest worker provisions pick up speed.
More specifically, Title I requires the secretary to certify that certain benchmarks have been met before the guest worker programs in Title IV and the programs in Title VI begin, with the exception of allowing foreign students to convert student visas to green cards,2 and probationary Z status for Z workers. "Z worker" is how the bill defines illegal immigrants who elect to fill out the paperwork for conversion to legal presence status, or amnesty. Title I also includes authorities and resources to augment border security.
That there are a lot of "loopholes" is well known. This article will only highlight a couple of these. For those readers who doubt the Senate's resolve, here's a link to a list compiled by Senator Jeff Sessions (R-AL), who opposes the bill.
Effective Date Triggers
Title I requires the secretary to certify that certain benchmarks have been met before the guest worker programs in Title IV and the amnesty programs in Title VI begin. To pull the trigger, the secretary of Homeland Security must certify to the president and Congress that the following border security and other measures are funded, in place, and in operation:
· DHS has hired 18,000 Border Patrol agents.
· Installed at least 200 miles of vehicle barriers and 370 miles of fencing.
· Installed seventy ground-based radar and camera towers along the Mexican border
· Deployed four Unmanned Aerial Vehicles (UAVs) and supporting systems.
· Immigration and Customs Enforcement (ICE) is able to maintain the practice of "catch and return", including resources to detain up to 27, 500 aliens per day.
· DHS has established and is using secure and effective identification tools to prevent unauthorized workers from obtaining jobs, including secure ID documents and the EEVS system.
· DHS' U.S. Citizenship and Immigration Services (USCIS) has received and is processing and adjudicating in a timely manner all applications for Z status under Title VI, including background and security checks.
The act states that it "is the sense of Congress that the border security and other measures described in such subsection can be completed within 18 months of enactment."
One could get a sense of wonder, however, by looking at the fine print. The fence provision, so prominently placed, is actually a watering down of the Secure Fence Act and REAL ID Act provisions passed in the 109th Congress. Section 103 of Subtitle A actually dramatically mitigates the secretary's authority to construct fencing any place it is opposed along the border. It also suggests that the a future secretary of Homeland Security could stop the entire process, presumably after the "trigger" requirement is concluded, or perhaps after the fence activities are quietly dropped. The bill actually gives the administration-perhaps the next administration-an opt-out clause:
Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.
In short, if the secretary wants to allow "border smuggling-business as usual" to please a particular border constituency, they can do that at will. Section 103 lets the air out of the tougher border security laws passed in 2005 and 2006.
Immigration experts agree about very little amongst themselves, but there is a general agreement that illegal immigration can't be solved at the border, but instead requires rigorous internal enforcement against employers and the apprehension of illegal aliens resident in the interior. The senate bill employs a reverse strategy. It adds a minimum of 6,000 full-time active duty border patrol officers over prior authorizations in the next five years, but it adds only 1,000 positions to investigate alien smuggling and that is stretched over five years. And it only increases by 200 over previous authorizations the number of Immigration and Customs Enforcement Investigators-which the agency charged with internal enforcement. For purposes of comparison, Germany employs over 6,000 internal immigration enforcement officers, which is why it has far fewer problems will illegal immigration than does the United States, despite its high standard of living.