by Tom Shuford
Columnist EdNews.org

No society is immortal . . . Even the most successful societies are at some point threatened by internal disintegration and decay . . . Yet some societies, confronted with serious challenges to their existence, are also able to postpone their demise and halt disintegration . . . (Samuel P. Huntington, Who Are We? The Challenges to America's National Identity, 2004)

Immigration chaos is such a challenge. Anyone concerned about education should have a working knowledge of how America arrived at its present state of near paralysis over uncontrolled immigration.

We have looked at three milestones:

1) the Plyler v. Doe decision of 1982, which required taxpayers to pay for the schooling of children brought to the United States illegally: The 5-to-4 Plyler decision was a creative interpretation of the Fourteenth Amendment's Equal Protection Clause.

Irony of ironies, Plyler v. Doe is the legal foundation for illegal immigration.

2) the 1999 nullification of California's Proposition 187, which would have denied services to illegal aliens and, no doubt, served as a model for other states: Prop 187, approved by 59 percent of voters, was derailed by a single federal judge. The appeal was dropped by newly-elected Democratic governor, Gray Davis.

3) "automatic birthright citizenship," the policy of granting citizenship to any child born in the United States: Automatic birthright citizenship derives from an expansive interpretation of a 1898 Supreme Court ruling giving citizenship to American-born children of legal Chinese immigrants. (A House measure, H.R. 698, which has 87 cosponsors, would end the practice of giving automatic citizenship to children of illegal aliens.)

There are other "milestones" of great consequence. IRCA, the Immigration Reform and Control Act of 1986, was a major overhaul of immigration law. Congress promised enforcement of new laws against hiring illegal aliens in return for a "one-time-only" amnesty for illegal aliens in the U. S. since 1982 or who had worked in agriculture for 90 days prior to May of 1986.

Congress delivered on the amnesty it promised; it reneged on enforcement of employer sanctions. This failure of the 1986 legislation led to 12 million new illegal aliens by 2006.

The 1986 Congress did have one notable achievement: An amnesty was actually called an amnesty in 1986. In 2006, immigration is such a radioactive issue euphemism is the required mode of communication. No national politician today wants to admit he or she favors "amnesty" for illegal aliens, even though that is exactly what most in the Senate and what the president and a large minority in the House want.

Thus the need for deceptive, saccharine terms such as "earned legalization." And "earned legalization" must be a part of "comprehensive" immigration reform. "Comprehensive" is code for everything-at-once reform: enforcement plus amnesty plus a "guest" worker program.

No politician wants a stand-alone vote on amnesty or on a guest worker program. Senators, the president, many in the House and the news media know that these special interest-coveted elements must be hidden under a "comprehensive" label — if they are to have any chance of making into federal law.

In late May, the Senate delivered on "comprehensive" reform. S. 2611, known as, the Comprehensive Immigration Reform Act of 2006. S. 2611 was approved by 23 Republican senators and 39 Democrat senators.

The fly in the ointment is the House of Representatives. The House is insisting on an "enforcement-first" approach — H. R. 4437 — before it will talk about an amnesty or guest-worker program. Why would the two legislative bodies take such different approaches to illegal immigration? Vulnerability. The House is up for reelection every two years. Only one third of the Senate must face the voters this fall. Not surprisingly, 90% of the senators up for reelection voted against S. 2611.

But another reason for House caution about amnesty are memories of 1986.

IRCA looms large over the 2006 debate. Otis L. Graham, professor emeritus of history at UC Santa Barbara and author of Unguarded Gates: A History of America's Immigration Crisis (2004), sums up what happened after IRCA — with its amnesty and promise of work site enforcement — became the law of the land:

The Immigration Reform and Control Act (IRCA) . . . [was] a public policy failure of major proportions. Sanctions on employers of illegal aliens entered American law . . . but a proposed system of worker verification based on a computer registry of Social Security numbers was defeated by objections to "a national ID card" (which was never proposed), and the claim that Hispanics would be "singled out" for special scrutiny.

The final measure allowed employers to accept as proof of legal residence any two of a wide range of documents, most easily counterfeited. "The change in farm labor market made by IRCA," wrote economist Philip Martin, "is the switch from undocumented workers to falsely documented workers." For this toothless provision, Congress traded an unprecedented amnesty for illegal aliens who had been in continuous residence since 1982, plus a special program to legalize already present illegal agricultural workers. The double amnesty was justified on the theory that blanket legalization was preferable to mass deportation, and that the problem would not build up again because the magnet [jobs] would be inactivated.

Almost nothing promised by the legalization turned out as expected. The amnesty covered . . . 2.7 million people who could then apply for visas for their relatives . . .

For illegal aliens who were ineligible for amnesty, . . . document fraud quickly became almost universal . . . pp108-109

Sidney Weintraub of the Center for Strategic and International Studies: "The '86 law is dysfunctional because we didn't want it to work. We passed legislation . . .

that we knew was unworkable because we aren't willing to take the steps of identifying who is an illegal. The (members of Congress) knew that when they did it." (1)

CORRECTION: "We" does not mean you and me. You and I did not want IRCA to fail. Congress and the special interests that control of Congress wanted the 1986 "reform" to fail.

Where are we today? Is the 2006 Congress any more public-spirited and foresighted than the 1986 Congress?

The Senate is not. The House is a different story.

S. 2611, supported by 62 senators, the president and the mainstream press, should it become law would match the 1986 IRCA fiasco in the dimensions of its failure to respond to public concern over out-of-control immigration. Hastily put together, with but two weeks of debate, this nation-transforming bill is unimaginably bad. The senators who voted for S. 2611 have disgraced their office. Voters should not forget who they are. Among senators in favor of the huge new amnesty and a dramatic increase in legal immigration that is S. 2611: a raft of presidential aspirants: Senators John McCain, Bill Frist, Chuck Hagel, Sam Brownback, and Hillary Clinton.

The yearning for the highest office does funny things to politicians.

Endnote

1) For details on how the 1986 IRCA amnesty worked and did not work see "Lessons Learned From the Legalization Programs of the 1980s," by David North, Center for Immigration Studies, 2-7-05. Highlights below:

...In 1986 the Congress passed, and President Reagan signed, the Immigration Reform and Control Act; it provided for an extensive (and complex) amnesty program and established employer sanctions, i.e., penalties on employers who hired illegal aliens.

...I was able to take a very close look at IRCA as the Ford Foundation had asked me to assess the new legalization program as it unfolded. I spent most of the next 18 months talking to a wide variety of actors throughout the country and examining the statistics generated by the program . . .

What lessons can be drawn . . . ?

A. Large numbers—often much larger than anticipated—of aliens sought legalization and the overwhelming majority of applications were accepted.

* * *

There was a great deal of many different kinds of fraud in the program; much of the apparent fraud did not lead to the denial of applications.

The promised balance—of a large legalization program for currently illegal aliens joined with a strict enforcement program against the future arrival of illegal aliens—did not eventuate . . .

* * *

...Efforts to create a work-force-wide identification system, so that legal workers could be identified by a single, government-issued document were defeated and a jerry-built documentation system was erected in its place.

...The largest of the [amnesty] programs, created under Section 245A of the Act, provided legal status to those aliens who had been in the nation . . . since Jan. 1, 1982, and who had not been convicted of serious crimes. It also provided legal status to those aliens who had done farm work for at least 90 days prior to May 1, 1986; these were special agricultural workers or SAWs . . .

* * *

Of the IRCA applicants, about 1.8 million were in the 245A program, and about 1.2 million were in the SAW program. While the numbers in the first program were somewhat lower than predicted, those in the SAW program were two and three times higher than expected.

* * *

The approval rates among the decided cases were high: 94.4 percent for the 245A program and 93.5 percent for the SAW program . . .

* * *

The IRCA program, unlike most of the rest of the immigration law, set no limits on the number of people who could be granted a benefit; in that sense they were treated like immediate relatives of U.S. citizens . . .

...the SAW program was more welcoming . . . This was on purpose, a boon to agribusiness which wanted to legalize as many farm workers as possible, to reduce any pressures toward the increase of wages for these, the least well-paid of all American workers. Among other things, SAWS were given 18 months to apply, while 245A applicants had only a year; SAWs had to claim illegal presence in the United States before 1986, while the others had to claim that they had been here since Jan. 1, 1982 . . .

* * *

The incidence of fraud in the two major programs was quite different; aliens seeking legalization had a choice of two programs, one in which the requirements (e.g., residence since 1982) were tough, and another, the SAW program, where standards were lower . . . people who qualified for one program or the other picked the program that worked for them, but those who qualified for neither were quickly attracted to the SAW program . . . Many an urban resident claimed SAW status, many without justification . . .

* * *

INS essentially threw up its hands and decided not to spend the time and energy needed to sort out the fraudulent SAW applications. Although substantial funds were available (applicants paid $185 when they filed) INS decided to use $50,000,000 in unspent SAW funds on a new generation of computers for the agency, rather than devoting those resources to fighting fraud . . .

* * *

...passing laws [against employing illegal aliens] and enforcing them are two different matters. The Reagan Administration and Republicans, generally, never were very enthusiastic about the enforcement of labor laws, and relatively little money was made available for employer sanctions . . .

* * *

Of course, the vast majority of legalization applicants would be Hispanic . . . There were, however, several factors at work that many observers thought tilted the system against non-Hispanics . . . The most obvious was the favoritism given by Congress to farm employers . . . that shifted the balance toward Mexican nationals . . .

Tom Shuford [email protected] is a retired teacher living in Lenoir, North Carolina.

Published September 5, 2006