Immigration Looms as the Next Test for Congress

Is Congress, behindhand on Barack Obama's deadlines on health care and cap-and-trade legislation, and flummoxed by the failure of the stimulus package to hold unemployment below 10.2 percent, prepared to address the immigration issue next year?

Homeland Security Secretary Janet Napolitano says it better be. The current situation, she told the Center for American Progress on Nov. 13, "is simply unacceptable." We need a "three-legged stool," with provisions to strengthen enforcement, legalize some illegal immigrants and improve "legal flows for families and workers."

This sounds a lot like the comprehensive legislation, backed by the Bush administration, that never came to a vote in the Republican House in 2006 and was rejected by the Democratic Senate in 2007. But, as Napolitano correctly noted, the facts on the ground have changed in the last two years.

It makes sense to switch from admitting job seekers to admitting job creators.

Ironically, the push for legalization in 2006-07 resulted instead in stronger enforcement measures. Some 600 miles of border fence have been built, the Border Patrol has been vastly expanded and the E-Verify system for determining whether job applicants are legally in the country has shown its worth.

It's probably not a coincidence that Arizona, where E-Verify is most widely used and where Napolitano used to be governor, had a statistically significant drop in its foreign-born population percentage in 2007-08. The Obama administration may be skinning back on some enforcement procedures. But states and localities are moving forward and the momentum seems to be toward stricter enforcement of existing law.

Even more important, the flow of immigrants into the United States is slowing dramatically, and may be reversing. The Pew Hispanic Center notes that the number of immigrants from Mexico in 2008-09 is down three-quarters from four years before. The Center for Immigration Studies estimates that the number of illegals in the U.S. declined by 1.7 million, or 14 percent, in 2007-08. Government figures show that border apprehensions, a statistic that is often taken as a proxy for illegal crossings, fell 23 percent in 2008-09 from the previous year and was only one-third the number in the peak period of 2000-01.

Those numbers obviously reflect a response to deep recession as well as the effects of tougher enforcement. They suggest a much smaller immigration flow and significant reverse migration back to countries of origin in the years ahead.

The 2006 and 2007 comprehensive immigration packages were premised on different facts. An approach more in line with current realities comes from a bipartisan panel assembled by the Brookings Institution and Duke University's Kenan Institute.

The Brookings/Kenan panel would provide for legalization of less than half of current illegals, with stringent requirements and only after stepped-up workplace enforcement provisions reach stated levels of use and effectiveness. Technology should allow programs like E-Verify to screen job applicants for legal status in a way that was promised but never delivered by previous immigration laws.

In addition, the Brookings/Kenan panel urges a sharp reduction in the number of green cards for relatives beyond the nuclear family of current legal residents and a sizable increase in admissions of high-skill immigrants. This is the approach taken, with good results, by Canada and Australia, which liberalized their immigration laws after our 1965 law opened the floodgates.

These proposals address the political reality that any new immigration bill must have bipartisan support, because the issue poses dangers for both Democrats and Republicans.

Conditioning legalization on more effective enforcement procedures could give Democrats cover from attacks for supporting amnesty. They could argue, accurately, that enforcement has become more effective and that they voted to make it even tougher.

Changing admissions requirements from favoring extended family members to favoring high-skill immigrants could give Republicans cover from charges that they are anti-immigrant. They could argue that, in a time of high and extended unemployment, it makes sense to switch from admitting job seekers to admitting job creators.

The 1965 and 1986 laws resulted in a large illegal immigrant population because they promised things that proved beyond the capacity of government to deliver. Now that a combination of public indignation and high-tech ingenuity have increased government's enforcement capacity, and while the inflow of immigrants is slowing and an outflow of illegals may be accelerating, we may have reached a point when we can put in place immigration laws with enforceable limits and that encourage an influx of the kind of immigrants we need most. Can Congress act?

Michael Barone is a resident fellow at AEI.

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