Bienvenidos America!

Twenty years have come and gone since the passage of IRCA  — The Immigration Reform and Control Act of 1986. If legislation is to be judged by the successful implementation of its title, then IRCA should probably be considered an abject failure as immigration seems to have remained unreformed and little controlled over the last score of years. Now comes Rep. Mike Pence of Indiana with some new thoughts and freshly introduced legislation that he recently proposed in an address to the Heritage Foundation.

Former House Speaker Newt Gingrich has given Mr. Pence's legislative progeny his imprimatur. The Pence Plan, though apparently not yet headline material, has received favorable mention from American Spectator commentators Messrs. Hillyer and Crocker.

The question is, of course, whether twenty years from now the Pence legislation would prove more effective in reforming and controlling immigration than was its predecessor. Legislators, being paid to legislate, seem inclined to see new or amended laws as the solution to nearly every concern or woe expressed by the American electorate regardless of from which end of the political spectrum they wail. Once passed into law, such additions to the United States Code are thereafter regarded as 'solutions' despite any and all evidence to the contrary.

One need only consider the 'billions and billions' of dollars — fifty billion per annum at last count — spent on the War on Drugs. This apparently does not include the cost to the states of incarcerating those convicted of 'drug' offenses. The dollar figures do not consider the social cost of the resulting militarization and alienation of community police forces. Rampant crime as well as the corruption of some law enforcement personnel are the unavoidable results of the obscene profits available in the drug trade. The nearly imperious authority that drug laws and policies granted or that encouraged government agencies, courts and individuals to assume has without question proven abusive of our freedoms.

What's this to do with immigration reform legislation? Well, two things.

The unspoken conspiracy

First, any law that relies strictly on enforcement and does not adequately consider the economic and social factors inherent in a given situation is bound to fail. There is a large contingent of conservative Congressmen and their constituents advocating, insisting on, what are essentially 'law and order' approaches to deal with the millions upon millions of illegals in this country — most, but certainly not all, having come to the U.S. from the country immediately 'South of the border, down Mexico way.'

But why should they be the ones to feel the teeth of any new legislation or more strictly enforced policies when they came to America with at least the implicit sanction and cooperation of local, state and federal agencies? Why should the illegals be the only ones to pay penalties when many of those who benefited financially from inexpensive immigrant labor did themselves violate tax and other labor laws? Just knowingly hiring an illegal is, after all, a violation of IRCA.

Consider the fact that in 1996, that's all of ten years ago, the IRS quietly introduced a taxpayer ID number for those individuals without a Social Security number. This made possible officially legitimate reporting and payment of taxes by illegals and their employers. They could now pay their taxes with reduced fear of discovery by the INS (that's the Immigration and Naturalization Service) since the IRS promised to not snitch regarding the illegals' employment or whereabouts. One alphabet agency versus another. How convenient for all the co—conspirators.

As reported  by the Christian Science Monitor in March of 2002:

"We had to do something," says Leandro Leon, education and communication director in the Houston IRS office. "These undocumented aliens were working here, using bogus Social Security numbers, and not reporting their income."

When the ID was first announced, Mr. Leon had a trickle of immigrants come to his office. But as word spread, and with assurances given that no immigrants' information will be shared with the Immigration and Naturalization Service, Mr. Leon started having to set up seminars to handle as many as 500 immigrants a night.

Those same high numbers can be seen at seminars all across the US. The IRS has signed up 5.3 million since the taxpayer ID program began in 1996.

"The majority of people here, regardless of their immigration status, want to pay their taxes and abide by the laws of this nation," says Aisha Qaasim, the legislative staff attorney at the Mexican American Legal Defense and Education Fund in Washington. "This tax ID allows them to do that."

Ms. Qaasim says the fact that the federal government is backing a program like this is a signal of official acknowledgement that millions of people live and work here illegally and will continue to do so.

Mind you now, that's 'official acknowledgement that millions of people live and work here illegally and will continue to do so.' Certainly sounds like official acknowledgement.

Perhaps 'official complicity' would be a better description.

Government agency complicity at the state and local levels generally takes the form of assisting illegal aliens to illegitimately obtain legitimate identity documentation and welfare benefits. This clears the path for illegals to obtain employment on something other than a paid—in—cash day—labor basis. Having genuine, government—issued identity documents can certainly go a long way in keeping the INS off an illegal's case.

The issuance of real IDs to illegals is not always done knowingly. But the complex of rules and procedures from one state to the next can lead, for example, to a fake birth certificate that was ostensibly issued in one state being successfully used in obtaining a driver's license in another. How does someone in Virginia know what a real California birth certificate looks like? 'America's Identity Crisis' is a study of the problem of fraudulent documentation in the U.S. that was published in 2002 by the Center for Immigration Studies. Even a cursory glance at this long article affords one an appreciation of the enormity and complexity of this issue alone.

The 'Real ID Act' of 2005 is scheduled to take effect in May of 2008 and is intended to address the problem of fake real IDs — or is that real fake IDs? In either case, USA Today reports it will become more expensive for states to issue driver's licenses in compliance with the new law and that:

Real ID sets federal rules for obtaining and renewing licenses and state identification cards. Residents of states that don't comply with the law will not be able to use their licenses for official federal purposes such as boarding a plane or entering a federal courthouse.

Does this mean that you'll be able to skip a federal court date if your license was issued by a non—compliant state? What about intra—state flights on a local carrier? Does this imply an increase in bus travel? Which stocks might be favorably affected? Or, if you're a short—seller, unfavorably. The possibilities for ridiculing this provision of the law seem endless. Voluntary compliance by all the states seems questionable and rigid enforcement by the Feds unworkable if not downright silly. But then, the law is the law. Right?

Mr. Pence's proposed legislation creates a non—automatic revolving door of sorts for illegal immigrants. Those here illegally would be required to leave the country and then apply for and receive a new class of visa predicated upon their having a job waiting in the U.S. before being allowed to return. Details of the new 'W Visa' include criminal background and health checks along with the inclusion of biometric data on the new style of work card to be issued. Employers would now be required to double check with the INS before accepting the already—hired individual to verify conformance between the card, its bearer and the data stored at the INS. Sounds logical. However....

If an individual has been resident in the U.S. for several years, obtained virtual citizenship identification through one of more of the methods discussed above, voted in several elections as a result of the motor—voter law, has produced children who, by virtue of being born on American soil, are legitimate U.S. citizens, as well as worked and paid taxes with his or her IRS issued taxpayer ID, why should and would such a person voluntarily leave the country with no guarantee of getting back in? Would you?

And by officially accepting the tax payments of persons known to be illegal aliens who are resident and working in the U.S. has the Federal Government granted quasi—citizenship to those who have voluntarily stepped forward to comply with wage and employment laws? Even as one branch of the government shielded illegal taxpayers from the clutches of another? Who's been more egregious with their lawbreaking? Sidestepping if you prefer. The government or the illegals? This could be an immigration lawyers wet dream.

How can or should immigration reform legislation deal with the shielding from the INS of illegal immigrants that can be the result of local police department policy? The Federal right hand and the state or local left hand often don't just don't know what the other is doing but actually work at cross purposes. 'Jack Dunphy' is the pen name of a Los Angeles police officer who writes anonymously for the National Review Online about the influence of local politics and political correctness on the policies and procedures of L.A. law enforcement. His January of 2006 article 'Arresting a Crime Wave' indicates that cooperation between immigration authorities and local police is improving somewhat. However, the legacy of years of non—cooperation and persistence of political advocacy for illegal aliens continues to hamper law enforcement efforts.

The third leg of the illegal immigration conspiracy triad is the private citizen or business person who knowingly or questionably employ illegals. Money fuels the illegal immigration engine just as it does the illegal drug trade. The opportunity to earn $8 per hour in California rather than $8 per week in countries such as Mexico has been an irresistible draw to literally millions of Latin Americans. With endemic poverty as the only living standard available at home and the promise of a vastly improved lot in life waiting north of the border for illegals and their families, there should be little that is surprising about the flood of immigrants into the United States. America's immigration barriers have proven woefully inadequate when placed in the path of the economic imperative of an inexpensive labor supply and a welcoming demand for it.

Private households hire illegals for domestic chores and housework, nannies for the tots so mommy (or daddy) can go to work or the spa, or provide home care for resident sick or elderly. Reliable and compliant domestic servants are available for a reasonable price. However, in many cases this involves not paying, in direct contravention of the law, income and social security taxes, or unemployment and disability insurance premiums. Comparison of 1990 census information with tax returns indicated that about one in four households with resident domestic help paid Social Security taxes for those employees. So who's more the lawbreaker here? To a greater or lesser degree it seems not the illegals. This was embarrassingly illustrated by the aborted appointments to high office of Zoe Baird, Kimba Wood and Linda Chavez, though none suffered the indignity of criminal prosecution.

What about the multitudes employed by private businesses engaged in manufacturing, farming or construction? The avoidance of payroll and other employment taxes by either the illegals themselves or their employers may now be of much less importance than it once was since even as of four years ago there were 5.3 million signed up for the extra—SS tax ID number program. Those who work as paid—in—cash day laborers, however, are still subject to the whims of their employer and face a bleak future when they are older and no longer fit for long hours of hard manual labor. No unemployment. No disability. No health care. No 401(k). Nothing. In the long run not much of a deal. In these instances those employing outside the law are certainly taking advantage of those working outside the law. And as guilty of breaking it.

And now we're proposing that all the illegals fess up? Voluntarily. Leave the country. Leave his or her job, all without any assurance of being rehired or permitted back in. Just stand in line while hoping to get an officially offered job that's the legal ticket to get back in. Who's going to watch their children, in a very large number of cases U.S. citizens by right of birth, while the parents queue up? Are we seeking to punish, inconvenience if you prefer, those who were invited here by the promise of a better life, shielded by any number of government agencies, worked hard, paid taxes and, in many cases, were exploited by a not insignificant number of our fellow citizens for their own personal financial benefit?

Victor Davis Hanson has written about his personal experiences with the dark side of the illegals situation in what he terms 'Mexifornia.' Second generation illegal immigrants seem to not have the same work ethic as their parents. Nor do they possess the same strong family values that are extant amongst the native Latin American population. Criminal activity increases along with the size of the immigrant population and its length of stay. Politically correct or not, this is real. And is a continuing problem for those living in California. Twenty years after the passage of IRCA, initially low—cost shortsightedness is proving to be socially and economically rather expensive. And not just for the myopic, but all Americans.

The 'W' Visa

Part of Congressman Pence's plan to resolve our problem with the current illegal immigrant 'nation—within—a—nation' is the creation and issuance of a new, high—tech ID that would be used to admit, hire and track 'guest workers.' The details of its structure, the encoded information held therein and its anti—tampering security features are, for the purposes of this discussion, not relevant. What is relevant is where, by whom and to whom the cards would be issued. According to Mr. Pence:

Therefore, the solution is to setup a system that will encourage illegal aliens to self—deport and come back legally as guest workers. This may sound outside of the box, and it is. It may sound far—fetched and unrealistic, but it isn't. It is based on sound, proven conservative principles. It places reliance on American enterprise and puts government back into its traditional role of protecting its citizens. Let me explain to you how it will work.

Private worker placement agencies that we could call 'Ellis Island Centers' will be licensed by the federal government to match willing guest workers with jobs in America that employers cannot fill with American workers. U.S. employers will engage the private agencies and request guest workers. In a matter of days, the private agencies will match guest workers with jobs, perform a health screening, fingerprint them and provide the appropriate information to the FBI and Homeland Security so that a background check can be performed, and provide the guest worker with a visa granted by the State Department. The visa will be issued only outside of the United States.

Outside of the United States. That is a key point because it is the provision that will require the twelve million illegal aliens to leave. Now, some of you are thinking to yourselves that twelve million people aren't going to pack up and leave just to get a visa to come back legally. But, I believe most will.

The process that I just described to you will only take a matter of one week, or less. That is the beauty of the program. Speed is so important. No employer in America wants to lose employees for an extended amount of time. No worker who is earning money to feed and clothe a family can afford to be off the job for long.

But, an employer faced with a looming requirement to verify the legality of its employees and stiff fines for employing illegal aliens will be willing to use a quick system to obtain legal employees. And, an illegal alien currently employed in America will be willing to take a quick trip across the border to come back outside of the shadows and in a job where he does not fear a raid by Immigration and Customs Enforcement.

This isn't 'outside the box.' It's off the planet.

The federal government will license private contractors to run 'Ellis Island Centers'? Is this putting the fox in charge of guarding the hen house or what? Employers will be the ones responsible for financially supporting the centers. Whose expectations will the center operators wish to meet or exceed? Recall all the shortcomings in the way government agencies have handle illegal immigrant issues. Private companies will do a better job of enforcing regulations?

Could there be even the slightest chance that the centers will take the place of coyotes? Maybe former coyotes will end up running some of the centers. Do you think that perhaps some corrupt Mexican officials might aid and abet the process of suppressing criminal record information? What about falsified medical information?

The only apparent advantage of the scheme accrues to Congress itself. Since it won't be a government operation, the American voting public won't be able to blame their fearless legislators for any glitches, shortfalls or failures of the system. Once cracks begin to appear, as they most assuredly will, outraged Senators and Congressmen will be calling for some form of remedial 'Sarbanes—Oxley' legislation to more tightly regulate the Ellis Island Centers, impose more detailed reporting and greater transparency, as well as severely punish the dishonest operators thereof. The only additional expense being the cost of extradition proceedings and transportation of those indicted under the new legislation/regulations since they'll always be located outside the U.S.

hat about the employers? Will they buy into it? Not if they lose the services of trained employees for some unknown period of time without any assurance that they can get the same person back. All employees are certainly not readily interchangeable like mass produced widgets, where whichever one you happen to have is of no consequence. Those illegals who've been here for awhile may no longer be quite so unskilled. Small business owners can rarely afford much redundancy in their employee ranks and parting with even one for a week or two is not always inconsequential nor without added cost.

Thinking that the vast majority of illegal immigrants will willingly cooperate with the Pence Plan is an assumption that is at least questionable and may very well be just flat wrong.

The logic of forcing illegal aliens to leave the country in order to bring them back, now newly baptized and reborn as a legal guest workers, is not clear. This seems to be no more than pandering to the 'no amnesty' hawks. Yes, the illegal aliens have broken the immigration laws. But perhaps as many Americans have violated IRCA as well as federal, state and local tax and employment laws. Are they to be summarily forgiven and given absolution? All while the wretched poor who came here seeking to better themselves, and have in ever increasing numbers even paid their taxes, are to be trundled back across the border to satisfy what is at the very least a discriminatory insistence on 'law and order'?

Laws and legalities are the stuff of legislatures, courts and the various components of the jurisprudence system. For better or worse, the issues related to the vast numbers of illegal immigrants in this country are far from being just a question of law and law enforcement. The illegals did not get here, live here, work here, pay taxes here and have children here all on their own. They were aided and abetted nearly every step of the way and over long periods of time by any number of government agencies and a multitude of private American citizens — to the benefit of all Americans in the form of lower prices and convenience. Those who lost their job to an illegal should not blame the worker. They didn't hire themselves. And yes, we have a moral obligation to these people. Surely to those who are hard—working and, at least when it comes to paying their taxes, honest.

To be sure, we as a nation should not permit the current situation to continue unabated. Controlling our borders, if we are to remain a nation, is imperative. We need not promise citizenship to anyone. Yes, it must be earned. However, many of the illegals have already made a sizeable down payment. There is no urgent requirement to strip them of it. There is the issue that these persons are, at least in one sense, undocumented aliens. That might be resolved by offering illegal aliens an opportunity to register within a specified period of time and without leaving the country, but with the provision that if they do fail to do so they will forfeit any future opportunity to gain citizenship — however that may or may not be offered at some later time.

The quandary we currently find ourselves in developed over a period of some twenty years, and involves issues that we as a nation neglected, sometimes officially, often deliberately, always unwisely. Illegal immigration isn't going away and its concomitant problems won't be easily resolved. Our esteemed legislators can, within very broad limits of course, pass any law they wish. But legislating a 'solution' to meet an election deadline seems folly. The great majority of illegal aliens residing and working in America are likely the ones least worth blaming for our current immigration concerns and woes. To do so would be unfair, unwise and, in the long run, unproductive.


There is no one—time legislative 'solution' to the myriad of problems deeply imbedded within the immigration issue. New or amended laws, however vigorously enforced, will not provide that solution if social and economic factors are not incorporated into and also contravene those laws. One need only consider the continuing negative impact and ongoing costs of the Drug Wars. Law alone will not provide answers when a sizeable minority of the American public economically encourages and supports illegal immigrants. Law alone will not provide answers when government agencies at the federal, state and local levels aid and abet in the illegal immigration conspiracy. In fact, law alone never provides answers to social and economic problems.

And there is no sense in thinking that somehow in this instance it will.

Dennis Sevakis is a frequent contributor.