Editor’s Note: This is the first in a series of blogs this week commemorating the 25th anniversary of the signing of the Immigration Reform and Control Act.
Twenty-five years ago today, on November 6, 1986, President Ronald Reagan signed the Immigration Reform & Control Act, a carefully-negotiated bipartisan bill which has become known as “the amnesty.” A quarter century later, the political rhetoric around immigration has changed so dramatically that it’s rare to find a Democrat in Congress who supports the idea of amnesty now, and most Republicans—who generally laud “the Gipper” as among the greatest of American presidents—see this legislation as one of his few errors.
“The amnesty” has a pretty bad reputation, amongst conservatives in particular, because, by at least one measure, it was an abject failure. If the Immigration Reform & Control Act (IRCA) was supposed to “end illegal immigration,” it decidedly did not meet its goal. Three million undocumented immigrants applied for legal status as a result of the passage of IRCA, but, twenty-five years later, there are an estimated 10.8 million undocumented immigrants living in the U.S. Clearly, illegal immigration was not stopped.
Particularly since we still, as a nation, need to solve this problem, it’s worth examining why IRCA failed to put a halt to illegal immigration. One element of IRCA was increased funding for border security, and we’ve continued to spend more and more on border security ever since. In 1986, we spent about $370 million on border security and other immigration enforcement; by 2010, we spent about $17.2 billion—a forty-six-fold increase—but it sure hasn’t seemed to work, as the number of immigrants living without legal status has climbed right along with that dramatic increase in funding (what has worked, arguably, is a miserable economy: the number of unlawful border crossings to the U.S. is down dramatically in the past two years and is now at a forty-year low, but it seems to have much more to do with the lack of jobs in the U.S. than with anything else).
The second element of IRCA which, theoretically, should have put a stop to illegal immigration was the institution of sanctions on employers who knowingly hire unauthorized workers. If employers were forced—by strictly enforced laws—to verify the legal status of everyone they hired, future undocumented immigrants would be unable to find work and—since jobs are the real magnets that pull people into the U.S.—they would simply not come. Had we actually enforced this element of the law strictly, it very likely would have worked.
The problem is that since IRCA did not adequately address the fundamental flaws in our legal immigration system by tying the number of work-based visas available to the needs of the labor market, employers and their lobbies in D.C. pushed back against this provision of IRCA. They argued that, without access to unauthorized immigrant labor and without new mechanisms to obtain authorized immigrant labor, their businesses could not succeed. It took very little time after IRCA’s passage for companies to find ways around these employer sanction provisions, hiring workers as “sub-contractors” rather than employees in some cases, and resisting efforts to create less-easily falsifiable documents while arguing that they could not be expected to distinguish between genuine and fraudulent documents. Employment agencies have flourished, allowing corporations to essentially outsource their legal liability, because they simply contract with the employment agency and are not themselves responsible for verifying their workers’ legal status. With a strong lobby against them, no Administration (Republican or Democratic) has seriously and consistently enforced these employer sanctions. And since undocumented workers could still find work in the U.S., they still came—in unprecedented numbers.
I don’t mean to place the blame on corporations here, though: while there are some bad corporations who want unauthorized workers who can be exploited because they fear being reported and deported if they complain, most corporations simply want adequate workers and would prefer that they have legal status. The real failure of IRCA was that legislators made it (theoretically) harder to immigrate and work illegally but did not adequately address the fundamental problem: that our antiquated quotas on legal migration were (and still are) entirely out-of-sync with the U.S. labor market. Most employers would be willing to accept a functional employment authorization system (the technology exists to dramatically minimize fraud, if we wanted to deploy it) if they were guaranteed an adequate flow of legal workers.
All that said, it’s also important to highlight where IRCA did not fail. The “amnesty” provision, which President Reagan said as he signed the bill would “go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society,” did just that. As a legal counselor, I’ve helped hundreds of immigrants who were granted legal status through IRCA to naturalize and become proud American citizens. Almost all those who legalized were able to improve their economic situation, which meant (beyond the benefit to themselves and their children) that they went on to pay much more in taxes than they would have as low-wage undocumented workers. Many—freed to be entrepreneurial in a way that their lack of a Social Security card made nearly impossible—went on to start businesses, reinvigorating the local economies of many communities. I’ve met several over the past few years who were able, after being granted a green card through IRCA, to follow God’s call into full-time ministry. Just last week I met a pastor, once an undocumented immigrant from Honduras, who was able to legalize because of IRCA, finished seminary, and served many years as a missionary in Brazil before returning to Memphis to plant a new Evangelical Presbyterian Church congregation. The many that have come to faith in Jesus through his ministry would likely be still unreached if not for President Reagan’s amnesty.
I’ve been very clear in the past that I do not think amnesty is the best solution for our current immigration problems: while I’m a big fan of amnesty as a theological concept (it’s a synonym for grace, and it means that I’m saved entirely through Christ’s death and atonement on the cross, not at all by my works), I don’t think it’s the best way forward as a public policy. While, as a recipient of grace, I am very clearly commanded to extend grace and forgiveness to others without limit, the government’s mandate to maintain the rule of law is different than mine, and amnesty sends the wrong message, that the rule of law is unimportant.
That said, the many benefits of IRCA’s legalization component—to individual immigrants and their families, to the Church, to national social cohesion, and to our local economies—highlight the importance of some sort of legalization process. We could—and, as both President Bush and President Obama have said in recent years, should—include some sort of a an earned legalization as one element of a Comprehensive Immigration Reform package. We could avoid the law-dishonoring pitfalls of amnesty by requiring undocumented immigrants to pay a monetary fine and go through a probationary legal status with a series of requirements to earn their way onto a pathway to citizenship—but we’d still be able to let (most of) these people out of the shadows, and our entire society would be better off.
This sort of common sense solution is actually widely popular. 72% of Americans, including majorities of both Republicans and Democrats, say they support it. But it’s almost impossible to find a Republican legislator or presidential candidate who will stand up for this now. While I don’t think we should be as quite as generous or forgiving as President Reagan was, we need politicians of both parties to learn from both the good and the bad of the Immigration Reform and Control Act and, a quarter century later, have the Reagan-esque courage to fix our immigration system once and for all.
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Matt, how would you respond if one of your clients asked you what kind of fine American politicians, American employers, and American consumers, will pay as part of immigration reform?
American politicians have written laws that are impossible to enforce and then have failed to enforce them – resulting, as you have said, in “a winking signal that our society did not really mean those laws.” American employers and consumers have enjoyed the labor of workers on whose behalf they refused to wield their political power.
What have been the legal consequences to American politicans, employers, and consumers of allowing, entering into and enjoying the fruits of illegal labor contracts? Very few consequences at all.
The hiring employers – those who more often than not have legal status, insider status and relative wealth – as well as the consumers of that labor (American eaters of vegetables, home dwellers, etc.) are treated like the 58mph motorist. But the hired employees are treated much worse.
Setting up a legal system in which we are all forced to operate that way – the status quo, that is – is indeed disrespectful to the law and to the values that are supposed to inform the law, like justice.
So a fix is necessary, but one that corrects the imbalance of consequences to those who have entered into and benefited from the illegal labor agreements.
You wouldn’t want the new system to require that only certain people – the undesirables, the least of these, maybe? – pay to get right with the law. That can’t be respectful of the law.
But in the broader debate, and even here in your post, debating whether or not “amnesty” is a good idea is always about whether “they” should get amnesty. The dialogue always assumes that following immigration reform all or nearly all insider/resourceful employers will get away scot free for all previous illegal employment relationships – or am I wrong? And consumers, of course, who watched and complained about foreign languages being spoken by the crews who built their homes, prepared and served their food, cleaned their homes and offices, and kept their grounds, will also get off scot free after immigration reform. But we insist that the person who signed the other end of the labor agreement – the outsider/poor employee – be the one to demonstrate “respect for the law” by either hitting the highway out of town or being shaken upside-down as we ask them to “earn” what we have freely given ourselves.
How respectful of the law – or of justice – is that?
Very compelling points, John. To be honest, I think the only reason I can give you that the other actors involved and complicit in our broken immigration system beyond undocumented immigrants–employers, our government, and consumers like you and me–should not also be fined in order to demonstrate a respect for the rule of law is that we would never get a bill passed with such provisions. I can’t really argue with the morality and justice of your argument, only with its likelihood of ever becoming reality in our current (or near-term future) political climate.
I’m very much looking forward to your guest blog here on Wednesday and think that others will find your perspective compelling as well.