On the morning of June 28, 2007, Commerce Secretary Carlos Gutierrez and Homeland Security Department Secretary Michael Chertoff huddled off the Senate floor with a handful of congressional aidesand lobbyists. They were waiting for the Senate to vote on a sweeping immigration bill that they had spent much of the year negotiating with Sens. Edward Kennedy, D-Mass., and Jon Kyl, R-Ariz., who had led a bipartisan coalition of senators sponsoring the measure.
Even before the midmorning voting began, it was clear from a desperate floor speech by Sen. Dick Durbin, D-Ill., that the bill would die. President Bush had been placing phone calls to lawmakers all morning begging for their support. A longtime Kennedy immigration aide was in tears.
The vote on the bill was 46-53, 14 votes shy of the 60 needed to advance it.
That was the last opportunity, perhaps for years to come, for any broad overhaul of the immigration system to make it through Congress. The bill was far from perfect, as Kennedy repeatedly acknowledged, but he pleaded with people to give it a chance. In the end, the measure’s “grand bargain” to create a temporary-worker program and a merit-based point system for awarding green cards; crack down on employers who knowingly hire illegal workers; and provide a path to citizenship for the estimated 12 million illegal immigrants living in the United States was too radical to win over reluctant lawmakers.
If it was radical then, it is inconceivable now. Even though President Obama supports a comprehensive approach similar to the immigration bill that Kennedy and Bush championed, the political reality in Congress is that only measures dealing with enforcement have a chance to pass. Even minor legislative changes involving work visas and green-card allotments appear to be off the table.
As with every other policy discussion these days, much of the debate over enforcement focuses on money and the proper role of the federal government. Lawmakers are considering a new requirement for employers to electronically verify that their workers are in the country legally. The Obama administration is asking Congress to ease the standards for charging employers with felonies if they hire illegal workers. Immigrant-advocacy and civil-rights groups, the ones who pushed hardest for a path to citizenship, are pressing DHS to scale back detention and deportation policies that they view as too harsh. Members of Congress are debating how many Border Patrol agents are needed.
The White House, aware that any hopes for comprehensive reform depend on convincing skeptics that the administration is doing all it can to enforce existing laws, touts its record. DHS Secretary Janet Napolitano cites the highest level of criminal deportations in history and a sharp increase in workplace audits to ferret out illegal immigrants. “What we have been doing is unprecedented in terms of the actual enforcement lay-down at the border,” she told National Journal. “It’s never been more extensive, and the president intends to sustain that.” But Republican critics, such as House Judiciary Committee Chairman Lamar Smith of Texas, accuse the administration of paying lip service to crackdowns. “They clearly don’t want to enforce immigration laws,” he charged in an interview.
Against that political backdrop, the upcoming debates over immigration enforcement are almost certain to be contentious. What follows is a look at the state of play with major components of the issue, both in terms of current activity and proposals for change.
MUSCLE AT THE BORDER
Homeland Security has made the most headway in combating illegal immigration by bolstering forces at the border between the United States and Mexico. About one-fourth of the U.S. Customs and Enforcement’s officers are now deployed along the Southwest border, and they are helped by 1,200 National Guard troops. The number of Border Patrol officers has doubled over the past 10 years to about 20,700. If Conress approves the funding, there could be 21,370 by the end of the year.
The big increase in Border Patrol agents began in the Bush administration. After the immigration bill collapsed, the White House hastened to respond to critics who hammered the government for being lax on enforcement. The naysayers’ critique of Bush and Kennedy’s comprehensive bill went something like this: How can we trust you with a new, voluminous immigration system that would legalize millions of aliens when you have botched the current setup so completely?
It would become the White House’s mission to prove those critics wrong. In February 2008, Chertoff promised that the number of Border Patrol agents would exceed 20,000 by the end of the year, more than twice as many as when Bush took office. That force remains in place today.
Unmanned aircraft cover the border from California to Texas, supplemented by mobile surveillance units and thermal-imaging systems to detect illegal crossings. Earlier this year, DHS canceled an expensive, high-tech plan to create an “electronic fence” using a series of fixed sensor towers. Napolitano said that the program wasn’t cost-effective because it wouldn’t work across all terrains. The department is now using the same technologies but tailoring them to fit the topographies and population densities of each region.
The deterrence appears to be working. Apprehensions at the border, a key indicator of illegal immigration, have decreased 36 percent over the past two years. Meanwhile, DHS is confiscating more illegal cash, drugs, and weapons. From 2007-08 to 2009-10, the amount of drugs seized increased from 6 million pounds to 7 million, the amount of cash from $209 million to $282 million, and the number of weapons from 5,300 to 6,800.
The disputes about how the U.S.-Mexico border is being managed revolve around two questions. One is practical: How much money does it take to secure the border? The other is philosophical: What is the definition of “secure”?
The money question involves whether DHS’s border effort can survive with modest cuts. (Policymakers appear to have decided that it’s time to stop throwing money at the department; DHS’s budget authority has grown some $20 billion since it was created in 2003, but the increases have gotten smaller in the past two years.)
The administration is not looking for a big influx of cash, but officials insist that maintaining current funding levels is paramount. Napolitano has protested a House Republican funding measure for fiscal 2011 that would, at minimum, prevent the department from adding several hundred Border Patrol agents. DHS’s gripe isn’t expected to mushroom into an all-out war, however: Even some Republicans say that the House bill cuts into border security too deeply.
“The situation on the border continues to be mischaracterized.” —Homeland Security Secretary Janet Napolitano
The philosophical question about what constitutes a “secure” border, by contrast, is far from settled. The Government Accountability Office issued a report in February saying that only 873 miles of the 2,000-mile Southwest border are under “operational control” and just 129 miles of that are “controlled.” Border areas are considered “controlled” if there are “continuous detection and interdictions resources at the immediate border with high probability of apprehension upon entry.” In areas regarded as being under “operational control,” Border Patrol agents have the ability to respond to illegal activity after it has reached the United States and not at the border itself.
Republicans says that’s a failing grade. Arizona filed a lawsuit against the federal government claiming that the United States has failed in its responsibility to protect the border state from an “invasion” of illegal immigrants. The federal government has “effectively conceded its inability to protect Arizona” by placing signs north of the border “warning people to stay away from the area and to call 911 (i.e., Arizona’s state and local law enforcement) if there were encounters with illegal aliens engaged in a criminal activity in the area,” the complaint said.
Napolitano, who was nominated as DHS secretary while serving her second term as governor of Arizona, bristles at these accusations. She delivered a blunt speech in January defying the border critics. “It is inaccurate to state, as too many have, that the border is overrun with violence and out of control. This statement, often made only to score political points, is just plain wrong,” she said.
To drive home just how much the situation has changed, Napolitano sent a letter to Congress in February inviting members to visit the border and see the improvements for themselves. “The situation on the border continues to be mischaracterized, and I am concerned that this is hurting the morale of our law-enforcement personnel and the local economies of border towns,” her letter said.
Mayors are also frustrated that other parts of the country think their border jurisdictions are being overrun. The mayors of nine towns in Arizona, California, and Texas sent a letter to former Arkansas Gov. Mike Huckabee this year protesting an op-ed in which he said that DHS “isn’t up to its task” of combating Mexican drug cartels.
“Not only do these claims fly in the face of statistical evidence, but they also disparage the tremendous efforts that our law-enforcement agencies have made to protect this border and the people who live in border communities,” the letter said. The mayors complained that they “are constantly having to correct the false perceptions that our cities are not a safe place to live, work, and play.”
The Obama administration will always be on the losing end of the battle to convince skeptics that it is doing enough to secure the border. Much like the war on terrorism or drugs, more always needs to be done. The flow of illegal immigrants into the United States is indeed ebbing, but that could be a result of the sluggish economy. Republicans also say that for every person stopped at the border, two to four others slip through. If those estimates are accurate (and there’s no way to know), the number of illegal entrants could be approaching 2 million a year.
Napolitano insists that today’s security measures are a vast improvement over the chaotic patrolling efforts of several years ago that brought the Minutemen and other ad hoc militia groups to border towns. “Even those that have been at the border two or three years ago, I think they would be surprised about what they see now,” she said. “It would be interesting to know in how many counties along the border we are actually the largest employer.”
SCRUTINY AT THE WORK SITE
Immigration has almost always been propelled by migrants’ prospects for employment, which is one of the reasons it is so difficult for the government to stem the flow of people crossing the border. Republicans and Democrats alike recite what has now become a mantra, that the only way to stop illegal immigration is to take away the availability of jobs.
Like the Bush administration before it, the Obama White House has taken aim at employers who rely on undocumented labor. Under Bush, the crackdowns took the form of workplace raids. In 2008, Chertoff bragged that immigration-related worksite apprehensions and criminal arrests had reached an all-time high.
Under Obama, DHS has engaged in a massive audit of employers to ferret out lax verification of workers’ credentials and extensive misuse of Social Security numbers. Napolitano has made a point of noting that the Obama White House has racked up more employer audits and debarments in two years than the previous administration did in eight. Since Obama took office, DHS has audited some 3,600 employers, debarred 260 companies and individuals, and collected $56 million in sanctions.
The administration made a deliberate choice to pivot away from Bush-era on-site raids to a more widespread paper review of companies. The audits allow investigators to assay employers more efficiently with longer-lasting consequences, according to DHS. “More employers are being audited, more employers are being sanctioned, more employers are being fined, more employers are being debarred,” Napolitano said.
Smith, the House Judiciary Committee chairman, is one of the foremost critics of DHS’s approach to enforcement. He sees the White House’s shift to paper-based audits as easing up on employers. “This administration is trying to weaken worksite enforcement,” Smith said. “I think it’s a tactical blunder. Their credibility is rapidly eroding on securing the border and decreasing illegal immigration.”
Smith counters the department’s successes on paper inspections with his own statistics: Administrative arrests have fallen 77 percent since 2008; criminal arrests are down 60 percent; criminal indictments have dropped 57 percent; and criminal convictions are off 66 percent. Smith also argues that fines aren’t a meaningful deterrent for employers who violate the law; many companies simply view them as a cost of doing business. “They’re two, three, four thousand dollars. That’s nothing,” he said. “Individuals are told they can’t work there, and they simply walk down the street and get another job.”
The federal government could do more on the criminal front if it had better tools to bring charges, according to Napolitano. DHS has asked Congress to streamline the standards for felony indictments. Currently, if DHS or the Justice Department wants to charge an employer with hiring undocumented labor, government officials “have to show not only that [the employer] knew the worker was illegal, they have to basically show [the employer] knew how [the worker] crossed the border,” she said.
Employers find the DHS audits irritating, to say the least, but they don’t disagree that Obama’s method is effective. Storming a workplace in riot gear catches only the illegal immigrants who are on the job that day. “Now you get all of them. You clean out the books,” ImmigrationWorks USA President Tamar Jacoby, whose group represents employers on immigration issues, said of the paper inspections.
Lawmakers want to make it a lot harder for employers to hire illegal labor in the first place. Congress will likely act this year on a bill to require businesses to use DHS’s now-voluntary electronic-verification program to check that workers are in the country legally.
“They clearly don’t want to enforce immigration laws.” —House Judiciary Committee Chairman Lamar Smith, R-Texas
Employment verification may be the biggest loophole in the country’s immigration enforcement. The current I-9 form for documenting employees’ legal status is inefficient and fraud-friendly. The government’s electronic system, called E-Verify, was launched as a pilot program more than 10 years ago as a way to fix the flawed I-9 process.
Businesses were dubious when E-Verify went online, citing high numbers of “false negatives”—non-confirmations of workers who actually were legal residents—as a major barrier to making the program mandatory. Now, independent evaluations of E-Verify put its accuracy at 96 percent, and employers have given it a score of 82 out of 100 on customer satisfaction. More than 246,000 companies at 850,000 locations are enrolled in the program, but that still represents only about 11 percent of the country’s 7.7 million employers.
E-Verify’s high accuracy rates make it difficult for the business community to openly fight legislation to make participation in the program mandatory, even though the requirement would represent a substantial new regulatory burden. For sheer public-relations reasons, businesses cannot say they are opposed to following such a law. At best, employers can ask lawmakers to provide some protection against prosecution if they make a good-faith effort to use the system properly.
A FOCUS ON CRIME
The Obama administration has tried to meld immigration enforcement with traditional law enforcement—in essence, to make sure that immigration-related policing has some relationship to actual crime. Last year, DHS announced that it had achieved the highest level of criminal deportations in history. “This surge in criminal removals did not happen by accident,” Napolitano told Congress. “It is the result of a targeted enforcement strategy.”
The search for criminal aliens has come through the department’s “Secure Communities” program, in which DHS partners with local law enforcement to identify illegal immigrants being held in state prisons and local jails for other crimes and moves to deport them. More than 1,000 local jurisdictions are in the program, and DHS is on track to include all jurisdictions by 2013.
Secure Communities was launched at the end of the Bush administration in 14 jurisdictions as part of an effort to better coordinate overall law enforcement. The Obama White House has expanded the program exponentially, despite protests from immigrant-rights advocates, because the collaboration efficiently tackles several tasks at once—punishing criminals, removing illegal aliens from U.S. soil, and emptying costly jail cells.
The philosophical question about what constitutes a “secure” border is far from settled.
Immigrant advocacy groups say that more than half of the people deported through local jails have no criminal records or were being held for low-level offenses. Detention facilities have filled up too fast to meet the aliens’ legal rights. Community organizers say they can’t in good conscience tell victims of domestic violence, for example, to call police for fear that they could be reported to immigration services. For their part, police departments worry that crimes in their communities are going unreported.
The administration appears undaunted. The hunt for illegal immigrants should start in the prisons and jails, officials insist, because those who commit crimes present the greatest danger.
Secure Communities may be just the beginning of local law enforcement’s involvement in immigration. Arizona’s high-profile immigration-enforcement law, which is being challenged in court, requires police officers making routine stops or arrests to check that people are in the country legally.
The concept is controversial, not least because of the potential for profiling, and the extent to which police can and should get involved in immigration enforcement won’t be determined until the courts weigh in. Washington says that police should stay out of immigration enforcement because it’s a federal issue. Some sheriffs say they don’t want their officers getting mired in complex immigration questions. Arizona counters that the feds simply aren’t there at street level to check on the migrant population; if police are available to do it, why shouldn’t they?
Napolitano, who served as Arizona’s attorney general before she became governor, has been a forthright critic of “enforcement-first” plans that assume that all illegal immigrants will simply pack up and leave the United States if officials make their lives sufficiently unpleasant. “Eleven million people. That would be like asking everyone who lives in New York City and Los Angeles to get up and move. What a joke,” she said in a speech at the National Press Club in 2007.
Dealing with the undocumented population was at the heart of the comprehensive immigration bill in 2007. The path to citizenship proposed for that group arguably doomed the effort to pass legislation. Then, as now, illegal immigrants in the United States represent the elephant in the room that policymakers dance around when considering smaller changes to immigration law.
Part of Napolitano’s job in advancing a broader immigration agenda is to show policymakers that enforcement is only one component of a three-legged stool. She says that the remaining legs are reliable trade with Mexico and a legal way for immigrants to enter the U.S. “I’m worried that Congress sees immigration only in terms of the border, and it’s actually a much broader issue for the country,” she said. “Border management and security, the trade issue, and immigration are intertwined.”
Legal immigration, particularly when it involves high-skilled workers, is generally accepted as being good for the economy. But the contentious debate over illegal immigration has caused the business community to lose considerable ground from its position a decade ago, when high-tech firms were successfully lobbying Congress for an increase in H-1B visas for high-skilled foreign temporary workers. In the late 1990s, businesses were also seeking to increase—or even eliminate—the annual cap on employer-sponsored green cards, saying that the market should determine how many permanent foreign workers the country needed at any given time.
Those proposals are unimaginable today. Businesses’ hopes have dwindled to simply making the visa system work. The American Council on International Personnel, for example, is asking DHS to adopt a system in which established companies can be “pre-certified” to hire foreign workers and have their visa applications approved as a block. Pre-certification would do away with headaches like that experienced by a European company whose launch of a green-energy plant in the United States was substantially slowed because DHS denied work visas for half of its foreign trainers.
Other employers simply slip through the cracks. Sen. Herb Kohl, D-Wis., approached DHS last year to ask whether his state’s dairy farmers could use an agriculture visa program to hire immigrant workers. He was told those farmers weren’t eligible because the work isn’t considered seasonal.
Napolitano can only throw up her hands in response to such plights. “I cannot fix the problem for dairy farmers. That is statutory. I cannot increase the number of H-1B visas. That is statutory. On issue after issue that comes up on immigration, it comes down to the question of when Congress will act. They’re going to have to act at one point; the question is when,” she said.
Certainly not now. Last year’s unsuccessful Senate vote on the Dream Act, which would have given some illegal immigrants, such as college-bound students, a path to citizenship, demonstrated that lawmakers are unwilling to change the rules for even the most sympathetic of illegal aliens. Politically, any immigration proposal other than enforcement invites a barrage of campaign attacks. After 2007, Republicans and moderate Democrats who championed the immigration bill either reversed their positions or paid dearly in the next election. Chris Cannon, R-Utah, a six-term House member who served the conservative Provo district, lost his seat in a primary challenge because of his immigration stance.
The impetus for Congress to act on worker-related immigration measures could change with an E-Verify law. Mandatory employment verification could put the farming, meatpacking, and hospitality industries—which rely on undocumented workers—in such a bind that lawmakers can’t ignore them. The current visa programs for seasonal workers are widely considered to be almost unusable. Growers say they can’t find Americans who are willing to take their jobs. “When you have effective enforcement and no way to get a legal workforce, that is going to be a real problem,” ImmigrationWorks USA’s Jacoby said.
Universal worker verification could, for the first time, make it impossible for employers to hire illegal immigrants without knowingly violating the law, a situation that most of them don’t want. The chaos that would follow would impact many areas. A sizable new black market of undocumented laborers and shady bosses could emerge. Certain sectors could be forced out of business. Fruit pickers, roofers, and hotel housekeepers could suddenly cost employers a lot more money.
It would then be Congress’s job to pick up the pieces.
This article appears in the March 26, 2011, edition of National Journal Magazine.