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May 20, 2007


If the stars are so well aligned, why does a more Democratic Senate, a newly Democratic House, and an even more vulnerable president lead to a deal that's much, much, much worse that a bill that passed the Senate last year (& which the President seemed willing to sign if it got through the house?)

Also, the touchback provision is truly one of the stupidest ideas I've ever heard. Worthy of Mike "Baghdad is just like Indiana" Pence.

Even talking like we have to take or leave this deal seems stupid to me.

(I guess the more vulnerable president could make it harder to pass in theory--but in practice, guest workers are Bush's pet idea. Liberals, labor, and conservatives don't want them; just Bush and the chamber of commerce and Jon Kyl.)

Publius, a couple of questions:

First, please cite examples of piecemeal fixing after omnibus legislation, particularly the big high profile ones. It's like compensation for losers after trade deals: it just doesn't happen.

Second, look at the history of both ideology and incompetence in every federal agency whee Bush/Cheney agents have had a hand. What exactly is it you think will keep that from happening again?

I'm opposed to this on practical considerations. I don't like omnibus legislation. I flat-out distrust anything the administration endorses, and feel history justifies that skepticism. When this administration and its supports finally go, we'll have a task as big as de-Nazifying Germany after World War II, removing or at least constraining the zaibatsu in Japan, dealing with the fall of the Stasi after German unification, and de-Baathification in Iraq. The whole federal institution has been subject to intense corrosion. It seems to me that our first duty must now be not to make it worse, and to prepare for that cleaning as best we can.

Giving the administration a major piece of legislation so full of bad provisions is not our best.

Also, someone needs to respectfully tell Senator Kennedy that he is over-estimating his prowess these days. Three times this administration he's gotten rolled badly on big bills (No Child Left Behind, Medicare reform, this). He simply is not the negotiator he once ways and/or is ill-prepared for negotiation with a bunch who never, ever deal in good faith, and is not serving his country well by doing it again.

The conservative base is passionately, even hysterically, anti-reform.

Not seeing myself as the “base”, but still conservative, I have to ask what you mean by this…

Before you tell me what “anti-reform” means, what does reform mean? To me it means a permanent solution to this problem. So what does it mean to you?

If this is right, why do Dems need “political cover”? This is something you want, but don’t want to take responsibility for and would like to “blame” it on Republicans?


I haven't been paying a lot of attention to this bill, as immigration reform happens not to be one of my passions (tho I would love to see the INS properly funded and administratively staffed with competent bureaucrats rather than overworked xenophobes ... but I digress), but IIUC, the chief problem progressives have w/ the bill is the guest-worker program.

Publius's idea does not apply well to that concern, because it's very unlikely that a program like that is something that can easily be tweaked later on. That program is going to be huge, it's got big business behind it already, and people will structure their businesses in reliance upon it. The day after it's in place, it will have immense inertia.

I am reminded of the notion that the lack of labor protections in NAFTA was something that could be fixed later, and look how well that idea turned out.

I'm also curious about the answer to Bruce Baugh's question about examples of piecemeal fixing after omnibus legislation.

Also: What is so great about passing immigration reform at all, such that Democrats should take any risks to support it? The only thing I can think of is that it could win Hispanic support in future elections. And that's worth a lot, but only if it's a sufficiently good bill. Are Hispanics going to be pleased with Democrats if the bill that passes just makes illegal immigrants into second-class exploitable workers whose path to citizenship involves interminable years of hoop-jumping and struggles with the immigration bureaucracy?

publius: I disagree. Like others, I am a lot more skeptical about some of the provisions being reformed later. The various fines and fees, yes; eliminating the guest-worker program, no.

Moreover, I think that this is one of those times when passing a failure of a bill will make it harder to do right the next time. People are still grousing about '86, and saying: well, they said they'd do enforcement before, but did they? No. That's a big impediment, and I don't want to add another.

Basically, I think that large chunks of this bill reflect business interests (the guest-worker program, the fact that it's not serious about employer sanctions), and other chunks reflect the need to try to mollify the unmollifiable (Hewitt, Malkin, et al). There's not a whole left that's actually good.

OCSteve: I can't speak for publius, but one way to read this: "The conservative base is passionately, even hysterically, anti-reform." -- is as follows.

The base is pro-change of some kind. Pro-building big fences; hiring more border guards, maybe enough to hold hands and make a human chain along the border; deporting everyone who's here illegally, etc. It isn't clear that this constitutes reforming the immigration laws themselves, though (as opposed to improving their enforcement.)

Maybe they (and by 'they' I'm thinking Malkin, Limbaugh, etc., and their listeners/readers) would like to change the laws in some way -- English exams at border crossings, even if you're just coming in for a day to shop? Forced pregnancy tests at the border, even for tourists? Who knows. But one might be excused for not thinking of stuff like this as falling under the category of 'reforms', as opposed to 'stupid changes' or something.

Alternately, it could be that p. was using 'reform' to mean 'some member of the broad class of bills that people who know something about immigration usually propose when they propose immigration reform', and because such proposals normally include doing something about the people now here illegally other than deporting all 12 million of them, he takes "the base" to be opposed.

Hilzoy: I’m on the record as loving your post the other day on this topic – I’ll repeat that it was awesome and I am still thinking about it. You can write in a way that makes me see your side, and more often than not agree with you. Sometimes joyously, sometimes (OK often) with clenched teeth.

Publius: I can tell you are a sharp person. But in all honesty your tone and your clever zingers turn me off before I get to your message. I think I would agree with you, but frankly you piss me off before I get to that point. Take that for what it is worth (little I know).

OCSteve: thanks. That means a lot.

Coming from you, OCSteve, I hope publius realizes it means a lot.

Like many here, I favor reform and am opposed to the guest worker program. Way back when it was first introduced I actually thought it was a good idea. Then I realized that it was merely a form of obtaining indentured labor cheaply.

To me, immigration reform requires 3 things (although not necessarily only 3 things):

1. Decent border security.

2. Going after the employers who provide the opportunities for those that enter illegally (and in fact, for many their main motivation).

3. A way of setting up a program for those here that is not flat out amnesty, sets up a penalty and restrictions, but gives them some hope of citizenship. But it must also be a program that is quick to weed out those who commit crimes of any sort.

It would also help if we worked, diplomatically, financially and any other way possible with those countries from which most illegal immigration takes place to try to provide less incentive to leave and more to stay.

In terms of this bill, if it were to pass as currently written, I don't think you would ever see the guest worker program changed, and that would create a very big mess. However, I don't think it will pass as written and I hope that any final effort will not include the worker program.

Finally, publius IMO is taking the route of what he sees as political expediency instead of principle. This has been one of my complaints about the latter day Republicans, and I don't blame OCSteve as being miffed.

look, i totally agree that this is difficult stuff. people are raising very strong arguments. but I think it's important not to underestimate the micro and macro benefits of bringing 12 million out of the shadows. for one, you get wage and labor protections and employers are in LESS of a feudal r-ship. second, it allows them to take advantage of benefits adn protections that we take for granted (gov benefits; being able to report crimes/domestic abuse/etc.; opening a banking account; not keeping your money in a sock; etc.). just imagine how difficult it would be if you could be deported for a speeding ticket and never see your kids, etc. now multiply that situation by several million and there you have life for far too many people

it's really a bad and exploitative situation. we have the first and, frankly, only realistic shot to fix that, to give these people benefits, and to eventually bring them under the umbrella of citizenship

that said, the guest worker program sounds really bad (among other things). the question is whether the benefits of the former outweigh the latter. this is not black and white -- but shades of grey.

as always, i'm not 100% i'm right (far from it). but, i think this is a unique (if imperfect) opportunity to change the lives of a lot of people for the better. of course, my views will change with the facts on the ground, but i still need to be convinced that a really bad guest worker program should sink an otherwise historically positive reform (if this is the only opportunity).

but one thing i strongly disagree with is that i'm somehow opting for political expediency. my view is that legalization is incredibly important and the opportunity won't come again for a long time

Publius: Seriously, I don't see why good incremental immigration reform culdn't be a hallmark of a Democratic administration, working on each part and seeing how it goes, starting with employer sanctions. You must know hte Bush administration isn't going to do anythign to inconvenience its buddies, and you must know by now how expansive they regard their powers of surveillance. We simply must not give them another opportunity.

And, not to be a pest about this, still waiting for examples of piecemeal fixes to omnibus legislation. NCLB? ADA? Medicare "reform"? Anything really big and heavily pushed? I don't often think this, but it seems like you're running on wishful thinking here. American politics doesn't work the way you're asking to aim for.

Bruce - i was attempting to evade your question,a nd i would have gotten away with it if it weren't for you meddling kids.

seriously - two points. first, i think it's important that (1) the gop doesn't run congress; and (2) this program will be implemented primarily by someone not named bush. this eliminates conference committee bs, and improves the odds of giving a future Dem administration some major regulatory discretion. it's a gamble, sure, but one that i think is worth it.

as for legislation that worded this way, I mean, I think you have to consider the successful new deal programs (SS) and the great society. these are programs that, once passed, will never be repealed and were consistently expanded and improved. the other point is that much of this program would be implemented by DHS. If that's a Dem, it means that very progressive policies can be implemented (people generally don't pay attention to admin agencies).

More recently, i think the prescription Rx bill will eventually be amended in better ways with a Dem president (better negotiating, etc.).

again, the key selling point to me is the micro-argument (ie, how much it could improve the "micro" lives of people). i'm not claiming to be anything other than a privileged white dude, but i think it's hard for people (myself certainly included) to understand and empathize with the daily struggles that come with living i the shadows. to explain that to your kids. to live in fear constantly. etc.

Publius: Confound it, I stand exposed as Old Man Hayek!

While it's true that a Democratic congress would be hammering out the terms, let us not forget signing statements, or the extremely politicized hiring process. And the absence of significant changes to omnibus legislation any time in the last few decades, and most especially the absence of much-needed removals.

i agree with your concerns. that's why, frankly, i'll support this bill more if it gives DHS a lot of discretion. i don't think (b/c of Iraq) the GOP will win in '08. and giving the administrative state power/discretion to implement/waive/etc. is worth it.

Tom said:

What is so great about passing immigration reform at all, such that Democrats should take any risks to support it?

It’s the right thing to do. Immigrant lives are ground underneath the machine of the American economy, and the rest of us benefit from their suffering. This isn’t about political expediency, it’s about applying progressive principles to help improve people’s lives.

Are Hispanics going to be pleased with Democrats if the bill that passes just makes illegal immigrants into second-class exploitable workers whose path to citizenship involves interminable years of hoop-jumping and struggles with the immigration bureaucracy?

Despite the valid issues that Publius raised about Dems in vulnerable districts not going to bat for immigrants, despite Bush and McCain being public supporters of comprehensive reform, the immigrants and immigrant advocates I’ve spoken to know that Democrats are good for immigrants and Republicans are bad. This only becomes more clear, at least in the eyes of the public, as the debate progresses. As Publius has said, this really is similar to racial voting dynamics in the wake of the civil rights movement. I think Republicans have already lost the votes of the immigrant (and immigrant-sympathetic) community for at least a generation.
And this bill does provide legalization for a whole lot of people who just can’t get it now.

John Miller said:
To me, immigration reform requires 3 things (although not necessarily only 3 things):
. . .
2. Going after the employers who provide the opportunities for those that enter illegally (and in fact, for many their main motivation).

I don’t see this happening. The bill needs employer support to succeed, and employers will not support it if there is too much costly enforcement and they don’t get the workers they need. See the NY Times article tonight. This is really the root of the entire immigration problem, since employers need labor and immigrants come for jobs. Simply saying “enforce strict sanctions against employers” is about as workable a solution as “just close the border.”

Publius is also right that implementation is a huge part of this issue. Clinton-appointed INS administrators established precedents and interpretations that are still very useful to immigrants today. The composition of the Board of Immigration Appeals matters a lot—Ashcroft purged the Board of its liberal members several years ago and immigrants have been worse off since then because of it.

I think this bill deserves progressive support. As I commented yesterday on Hilzoy’s post, this bill is as good a temporary fix as we are likely to get. No bill is going to solve the major problems because immigration is itself caused by factors this legislation doesn’t begin to address.

Bruce, the problem is that incremental change doesn't solve the problem. The center to the whole thing is bringing the current illegals out of the shadows and legalizing them. I can not conceive of any way that there will ever be a time when that, by itself, does not constitute comprehensive change. No attempt at incremental change will ever deal with it.

If you want that change to happen, then you must support a comprehensive overhauling of the whole system. There's no other way. In order to get that one change, you're going to have to give up a lot on other fronts. If you don't, you'll never assemble the vote for amnesty, or whatever you want to call it.

I'm not saying that this bill constitutes an exceptable set of tradeoffs. That's going to be the subject of a lot of analysis and soul searching. Your argument, though, is that we should never legalize those 12 million people. That may not be what you want it to mean, but that's the effect it will have.

J. Michael Neal: I grew up knowing a lot of illegal immigrants and their families, and have always wished they could get better treatment. But this doesn't override my objections to how this particular administration actually does business, or to the fate of significantly flawed omnibus legislation.


I think that you are both too optimistic and too pessimistic. First, you are way too optimistic about the prospect of incremental fixes after this comprehensive reform is passed. Incremental fixes in immigration laws almost always go the other way, making them more punitive (see e.g. AEDPA and REAL ID), so I would not hold my breath. (Also if you think about SS and Medicare as omnibus laws that got tweaked, then under that model you are going to have to wait about 20yrs to get any changes in this law).

I also think that you are too pessimistic about the prospects of a genuinely popular, genuinely progressive immigration reform. Earned legalization schemes are actually much more popular than they are usually given credit for nationally and hard-core restrictionists are a small slice of the population that is largely republican (that is, it is not that bi-partisan). I understand that in this day of hyper-close elections and with the Southwest and mountain region populated with swing states every vote seems to count, but there has also not been any genuine progressive leadership on this issue. Except for a few days last year, no one has been visible making the case that we need to give the undocumented population a path to citizenship. With a little more leadership, opinions will change.

Finally, I don't think that you appreciate how terrible this bill is, in outline and in the particulars. In the broader outline, besides the guest worker program which should be anathema to all right thinking people, the bill represents the largest overhaul to our immigration system since 1965. It changes our immigration system from one based on family connections to one based on skills, and will effectively eliminate the ability of immigrant families to reunite. This change is almost as bad as the guest worker program. Also, everything in the bill unsurprisingly is designed in such a round about rube-goldberg way to be as punitive as possible rather than effective. It will probably not bring all of the 12 million undocumented out of the shadows (possibly not even half) and is guaranteed to increase the number of undocumented immigrants as well as the rate that they arrive (e.g. approx. 400,000 former guest workers every two years).

I appreciate how important it is, from a policy, as well as a moral, perspective to offer the current undocumented population way to legalize their status. But this bill, in its current form, is so bad that I do not think that it deserves progressive support.

Publius has me semi-convinced. Think about it this way. Let's say the ideal system is one with (1) a path to citizenship for illegals already here, (2) no guest worker program, and (3) employer sanctions. The status quo has (2) but not (1) and (3). The legislation on the table has (1) and (3) but not (2).

When the Democrats regain control of Washington*, which will be easier for them to pass into law? Legislation eliminating or cutting back the guest worker program, or legislation creating a path to citizenship for illegals already here?

[* I'm not sure if "control of Washington" means control of the presidency or control of Congress. Probably some kind of sliding scale. Of course, if you have control of both, you definitely control Washington.]

First, please cite examples of piecemeal fixing after omnibus legislation, particularly the big high profile ones.

Isn't welfare reform the most commonly cited example for this? Clinton later got around to fixing certain aspects of the bill originally passed by the "Contract for America" Congress in 1995.

The examples of NCLB, Medicare reform, etc. aren't really on point. The idea is that you get to fix the legislation after you get back into power. The test will be whether the Democrats are able to fix that stuff after 2008 (assuming they win back the Oval Office that year).

JP: Of course, Clinton's welfare reform was a terrible move in many ways. I regard it as a good example of making things worse. But even acknowledging it as an example of significant change and setting aside the value judgment (because people aren't yet compelled to accept my opinions, damn their eyes), that's one, against a lot of cases where change is warranted but simply can't happen. The ADA is the one I know best because, well, I'm a Feeb-American. Much of it's really good; parts are flawed and worse, but every proposal to fix the latter goes down in flames because beneficiaries (rightly, in many cases) fear that it'll turn into a free-for-all wipeout. So, it seems to me, with many other such things.

that's one, against a lot of cases where change is warranted but simply can't happen

I think it depends on the specific circumstances of each individual case. For example, is the part you want to fix later the popular part of the legislation or the unpopular part of the legislation? And so forth.

it's important not to underestimate the micro and macro benefits of bringing 12 million out of the shadows [snip] wage and labor protections [snip] gov benefits; being able to report crimes/domestic abuse/etc.; opening a banking account; not keeping your money in a sock; etc.). just imagine how difficult it would be if you could be deported for a speeding ticket and never see your kids, etc.

Publius, your comments indicate that your chief concern here is the well-being of the illegal immigrants already here. While I do sympathize with their problems, I also note that the adult wage-earners preferred these problems to the ones they had back home. Given the amount of seasonal migration and deportation, the immigrants must have a pretty good idea of what they're getting into. It's a sucky choice to have to make, and I have no problem with paternalistic legislation preventing our own citizens from making it, but it was a choice, so it doesn't make me totally burn with the need to fix their problems at any cost. I'm not convinced that setting up a new sucky choice for would-be braceros, i.e., the guest-worker program, is a good enough fix. Sorry, but just based on the threads here, I think I go the other way from you.

SR:It changes our immigration system from one based on family connections to one based on skills, and will effectively eliminate the ability of immigrant families to reunite. This change is almost as bad as the guest worker program.

No, it isn't. I've been married to a Nepalese woman for nearly 3 decades now, and I've been kind of immersed in immigration issues for some time as a result. I've watched the "chain immigration" process in action, and this reform is long overdue. It's one thing to reunite nuclear families, which, as I understand it, this bill will continue to allow. But it's quite another to start bringing in adult siblings of adult immigrants. Once that barrier is broached, there is effectively no limit to the number of people who can immigrate based on family connections. Yes, third world countries do tend to be organized into extended families in a way that we no longer are in the US, but the inability to bring one's brothers and sisters here, and for them to bring in the in-laws, who in turn bring in their relatives, is hardly a hardship for the original immigrant. It's not like needing to bring your spouse and children here so you can make a life for your nuclear family. Let's not forget that the number of visas is and always will be limited. Bringing in extended family members in preference to others who may be better equipped to succeed in and contribute to American society is just not a good idea.

An even worse idea is the Diversity Visa program as it currently exists. It is, rightly, called a Lottery Visa by the people who are affected by it. The magic fairy in the embassy bestows a winning lottery ticket on some lucky person, who is allowed to immigrate for no other reason. At least these people are required to have enough of a connection in this country to get a financial sponsorship before they can cash in their ticket. But this has led to the formation of "sponsorship companies" that arrange for support documentation for a substantial fee charged to the immigrant. This provides no real support, just a lottery ticket cashing mechanism. Many of the people who immigrate this way are shocked to find when they get here that the streets are not paved with gold and they aren't immediately dripping with the wealth that just condensed out of thin air (I guess having the lottery ticket arrive that way only helped solidify their expectations in that regard). Often they find that life is actually harder for them here than it was in their home country, and they go back.

Of course, my experiences dealing largely with Nepalese immigrants and foreign students at my university with their own set of visa issues are probably quite different than the issues involving Latin American immigrants. It isn't common for the most destitute people in a poor country like Nepal to be coming to the US. The people I interact with were nearly always middle or upper class back in their home country, even if they were very poor by our standards. These people generally favor a guest worker program. Many of them have no desire to immigrate to the States. Life is harder for them here, and their social status is much lower than it was back home. They put up with this so they can work for a few years, save nearly everything they make, then use the relatively large block of capital they've amassed to build a nice home and start a business in their home country. These people would love to be able to do this legally on a guest worker program. They do it now, illegally, on tourist visas. I know this has little to do with the horrors of the bracero program, but I'm not convinced that all forms of guest worker programs would be bad. As many here have said, the devil is in the details.

DonSinFalta: The diversity visa program is also (as I understand it) directed at people from countries who are underrepresented among current immigrants. This (also as I understand it) is one of the reasons why it's virtually impossible for Mexicans who aren't related to citizens, or possessed of sought-after skills, to immigrate: not being an underrepresented nationality, this program, which is the main 'wild card' allowing people who aren't related to citizens, brain surgeons, etc., to get work permits, isn't available to them.

Don SinFalta

It is a shame that the term "chain migration" is beginning to come into disrepute. The process of chain migration has been the means by which immigrants have come to this country since colonization, and it has been a boon for this country as well as those lucky enough to join it. If it weren't for chain migration most of my aunts and uncles would not be here, and my childhood would have been much poorer for it (nor, I might add would my fiancee have been able to emigrate). The fact that a lot of people from third world countries who lack PhDs are able to gain status through chain migration is a feature, not a bug. It helps their family members here (who are, you know, citizens like everyone else) immensely and the future generations are part of what makes the melting pot so great.

I also do not see the urgency for a point-system right now. It might be better than the current employment-based system, but then again it might not (see today's NY Times story). Granted, this country needs more nurses and, I guess there is always a need for software engineers. But I thought that we had the best educational system in the world, so why should we have to import our talent. However, I would be open to changing the employment-based system to allow for a points based system without radically altering the family basis of most immigration to this country. But this would be a big change which ought to be publicly debated rather than inserted into a bill during a closed-door meeting with the White House.

Hilzoy, yes, I believe you are correct about the diversity visa program. I brought that up in the general context of dysfunctional aspects of our current immigration system. Given the immigration pressure even from underrepresented countries like Nepal, this seems like the worst possible scheme for achieving the (quite reasonable) goal of increasing the diversity of our immigrant population. Neither it nor the family visa issue rises to the level of importance of dealing with our 12 million current illegals (of which the Nepalis make up an insignificant fraction).


Yes, I think any time a term like "chain migration" becomes attached to an issue like this, it represents an oversimplification and an opportunity for all sorts of unfortunate framing. So I'll apologize for my laziness in using it as a shorthand. But I find myself reacting with some incredulity when I see blanket statements that family criteria are preferable to skills-based criteria for awarding visas. Any evidence that we're better off because we have had immigration in the past under that system doesn't imply it was the best system we could have devised, and in my experience it has led to a number of people being allowed to immigrate who had no business being here and who failed to make it and became burdens on society once here.

I'm sure there's all sorts of anecdotal evidence either way, and of course no system will be perfect. But the notion that we should use criteria that are relevant to the probability of the immigrant being a successful member of society once here just seems like common sense. And while having family around for support is one such criterion, it isn't the only one, and it isn't clear to me that it is more important than others. I agree with you that the fact that we are able to admit people from third world countries without PhDs is a feature. That we do it based on their family ties alone, not so clear at all.

Senate Scales Down Proposed Guest-Worker Program:

The Senate slashed the size of a proposed guest-worker program for foreign laborers yesterday, dealing the first real blow to a fragile overhaul of the nation's immigration laws since it reached the Senate floor this week.

The bipartisan 74 to 24 vote trimmed a program that could have admitted as many as 600,000 laborers a year down to 200,000, a level that proponents said would minimize the risk that participants would depress wages and replace U.S. workers.

Now, that wasn't hard, was it?

And the right gets something, too!

[...] Republicans moved yesterday to bolster the proposed border controls to answer some of the conservative criticism. By voice vote, the Senate adopted an amendment by Sen. Judd Gregg (R-N.H.) that would toughen the border controls that must be in place before many of the immigrant-rights measures go into effect. The Department of Homeland Security would have to hire and train 20,000 Border Patrol agents, not simply hire 18,000, as the original deal required. It would also have to build more vehicle barriers and radar and camera towers than first proposed.

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