Boehner’s Dilemma: Which Comes First, Legalization or Enforcement?

The chicken and egg conundrum of this proposed small grand bargain proposal, or any other, is: Which comes first, legalization or enforcement? In the sequence I’ve described the enforcement bills come first, followed by the legalization bills.

That sequence is one way to solve the problem of having the Senate and the president take seriously the House’s immigration proposals, assuming they aren’t simply lightly modified versions of the large and complex Senate bill. It describes a legislation process that ensures both parts of the compromise, some legalization and enforcement, are taken seriously.

However, it is in the implementation of these two elements that other, crucial decisions arise.

Would legalizing those applying for a change of status happen right away? If so, what would that mean for the enforcement provisions that would take years to put into place and operate effectively? Almost certainly it would result in repeating a past error, which it would be in the most basic public interest to avoid.

Putting legalization into place first, without effective enforcement systems operating would repeat the mistake of the 1986 IRCA bill, and be the basis of the same concerns that sunk President George W. Bush’s 2007 immigration bill, and is also a chief stumbling block for enacting the current Senate bill. The United States would be forced to confront this same set of divisive and unnecessary political fights again.

Assuming for discussion that each set of bills passes the House and Senate and is sent to the president and signed into law, how is it possible to avoid the trap of legalizing those who are here illegally, whether children or adults, without having enforcement provisions actually put in place and operating?

The only way to ensure that legalization, of whatever group or groups, does not become an immediate fact while the will to carry out the enforcement part of the bargain fades with time and new concerns is to delay any permanentlegalization of the adult illegal population until enforcement procedures are put in place in the workplace, at the borders, and through entry-exist systems at our ports of entry. I assume these enforcement procedures can be sufficiently phased in, especially workplace verification, in a period of three to four years to make them effective and provide a foundation on which needed improvements can be made.

The linchpin of these efforts must be the employment verification system; since without the ability to work, overstaying one’s legal visa or illegally crossing the border as a route to living and working in the United States is more difficult and hence less attractive.

Yet, there is a further basic question that confronts us at this point. Assuming an agreement to put enforcement first, how would that actually work? What would happen to the machinery of enforcement already in place?

What happens to illegal alien criminals facing legal or deportation proceedings? What happens to an illegal immigrant picked up trying to cross the border? What happens to the drunk driver picked up in Boston after being ordered deported? What happens to the illegal alien father of a child who is an American citizen? Or the illegal alien who was brought here as a child and has received DACA authorization? What happens to the illegal alien who marries an American citizen and wishes to apply for a change of status on that basis?

There are answers to these questions, and they involve developing fair standards by which to make a basic distinction.

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