Ronald Reagan once said that you can get a lot done in Washington if you don’t insist on taking credit for it. He might have added that you can get certain things done only when lots of people start to care less about them. That may be the case now as the Obama Administration prepares its policies on immigration reform.From well before the time that President George W. Bush proposed a major overhaul of the system in January 2004 until the onset of serious economic troubles this past summer, immigration reform stood near the top of the U.S. domestic agenda—but to no avail. Prior to President Bush’s speech, vast divisions had made the issue untouchable, and Bush aimed to break the stalemate by staking out a centrist position that drew on proposals from both liberals and conservatives. His reform package combined tougher border enforcement, checks on businesses that employ illegal immigrants, a path to citizenship for those in the country illegally, and a guest-worker program for businesses that rely on seasonal labor. The following year, Senators Ted Kennedy (D-MA) and John McCain (R-AZ) introduced a bipartisan bill that embodied the President’s proposals, and it passed in the Senate. But the proposal sparked ferocious opposition from conservative House Republicans, who derided it as “amnesty.” The measure failed. The standoff in Congress then led to the passage of the Secure Borders Act just before the 2006 elections, which authorized the construction of 700 miles of fencing along the 2,000-mile U.S.-Mexico border. That hardly constituted comprehensive reform. After Democrats won control of both chambers of Congress in the 2006 midterm elections, many observers predicted that the “new majority” and President Bush would find grounds to cooperate. A bipartisan coalition in support of reform seemed in the offing as Senator Kennedy teamed-up with Arizona’s other Republican Senator, Jon Kyl, to craft a bill behind closed doors. But after much maneuvering, their bill was pronounced dead in the Senate on June 28, 2007. Four months later, Senator Dick Durbin’s (D-IL) Dream Act, which sought to allow the children of illegal immigrants to attain citizenship by attending college or joining the military, also failed in the Senate. It was clear then that nothing would happen until after the 2008 elections—and, indeed, nothing did. Why did comprehensive immigration reform fail? One answer often suggested is that partisan polarization and divided government paralyzed the policy process. Another is that President Bush’s low approval rating, shortage of political capital and lack of legislative skill prevented him from getting a bill through Congress. But the most frequently advanced explanation is that a groundswell of popular sentiment blocked reform. For conservatives, it was democracy in action: Lawmakers heeded the misgivings of average Americans. But for liberals it represented democracy’s dark side, with legislators cravenly kowtowing to a vocal minority of nativist reactionaries. Whatever the merit of these explanations, they leave out a great deal. The notion that Left-Right polarization and divided government caused the immigration impasse flies in the face of the facts. The measure that passed the Republican Senate in 2006 before the midterm elections was less onerous on those in the country illegally than the one that failed to pass in June 2007. As Michael Barone put it in a July 2, 2007 column, “a Senate with more Democrats and fewer Republicans may not have had 50 votes for a more stringent bill.” It is true that over that time Republican opposition had hardened—sometimes in response to protests by immigrants—but there was much more Democratic resistance than expected. Both Parties split on the issue, creating crosscutting cleavages that did not map neatly onto institutional divisions between the House, Senate and President. Nor was the electorate polarized on the issue. A Rasmussen Reports poll found little bipartisan enthusiasm for the Kennedy-Kyl bill. It was supported by only 22 percent of Republicans, 23 percent of Democrats, and 22 percent of independents, and opposed by 52 percent of Republicans, 50 percent of Democrats, and 48 percent of independents. If there was a salient feature of public opinion regarding immigration during the Bush presidency, it was its nonpartisan character. The public generally opposed the status quo and wanted to reduce the number of people entering the country, legally as well as illegally—which was nothing new. Polling data show that stable majorities of voters have favored reducing the flow of immigrants (legal and illegal) for more than thirty years.1 Yet—and here is the fact that casts doubt on explanations that directly link public opinion to congressional behavior—these attitudes have not prevented Congress from adopting expansionist policies, most notably in 1986. This inconvenient fact alerts us that the real place to look to understand America’s immigration politics is the U.S. Congress. The multiple forces that intersect there—with its particular organization, procedures and incentives—best explain why comprehensive immigration reform failed during Bush’s tenure. Beyond the obvious point that American government is not designed to make quick, sweeping decisions in domestic policy—or at any rate, to make them well—important features of the nation’s legislature make immigration a particularly nettlesome policy arena. It is worth specifying these features, because no future effort at immigration reform can ignore them and still hope to become law. Legislators ran into several “policy traps”, a notion political scientist Kent Weaver developed to explain how the Clinton Administration achieved welfare reform whereas its predecessors failed.2 His framework is useful in explaining why enacting immigration reform is so difficult and how we might make it happen. According to Weaver, certain policy problems create situations wherein politicians cannot “get more of something they want, without also increasing the risk that they would get more of something that they do not want in either political or policy terms.” The resulting “traps” for legislators reduce the odds of major policy change. Immigration reform’s prospects will hinge on whether the Obama Administration and its congressional allies can devise ways to avoid getting caught by four particular policy traps.
The Multiple Constituencies Trap Multiple constituencies set the first trap. Immigration reform can quickly becomes a game of whack-a-mole: Policies designed to satisfy one group cause others to pop up in outrage. Immigration reform touches on at least five major constituencies: the illegal immigrants themselves; their supporters among Latino organizations; organized labor; the business community that depends on foreign workers; and an engaged slice of the voting public. The fact that reform has the potential to arouse so many different groups makes legislators nervous. They are wary of attracting the negative attention of citizens who aren’t otherwise politically engaged, for this can come back to haunt them at election time. Members of Congress prefer to avoid striking tough deals among competing constituencies, favoring instead legislation that benefits one mobilized group while dispersing the costs. (Think of agricultural subsidies.) Like most people, lawmakers want to take credit and avoid blame. But immigration reform defies such desires, for legislators seeking to satisfy one constituency almost invariably rile up another. Consider, for example, that many liberal Democrats favor an expansionist position. They want to help immigrants—for whom a significant segment of the public has some sympathy—out of humanitarian concern and to curry favor with the Hispanic voting bloc. Therefore, they propose various legalization procedures for those already here as well as expanded quotas for those waiting south of the border. The appeal of such an approach should come as no surprise, since Latinos are a fast-growing segment of the electorate, a majority of which votes Democratic. But this offends moderate and conservative Democrats, who (like many Republicans) are sensitive to voters who are offended by the notion that people would be rewarded for breaking the law, or worried about the threat large numbers of illegal immigrants supposedly pose to American jobs, wages and culture. Particularly if they represent districts where such views predominate, the response of such legislators is predictable: They oppose reform. Similarly, any Republican effort to help the business community with its labor needs through a guest-worker program inflames other constituencies. It risks offending those skeptical about importing more foreign labor, Hispanic groups concerned that such programs are exploitative, and service-sector labor unions that oppose the creation of a category of workers they can’t organize. On the other hand, building fences and beefing up the Border Patrol to satisfy wary Americans runs afoul of immigrants and liberals, as well as Latino voters and organizations. In addition, many Americans are skeptical that the government is capable of securing the southern border. Poll data suggested that opposition to the Kennedy-Kyl bill was driven more by cynicism about whether it would provide real border security than about its “amnesty” provisions. The public’s skepticism is part and parcel of a worrisome divide between the preference of a majority of voters for fewer immigrants and a political process that since the 1960s has yielded, on the whole, an expansionist policy. The 2006–07 impasse was the result of two forces pulling in opposite directions. Policy concessions crafted by Republican advocates of immigration reform to lure in restrictionists weakened support among Latinos, business associations and liberals. Conversely, Democratic efforts to satisfy Latinos, service-sector unions and liberals increased the skepticism of restrictionists (including some craft unions). Thus a kind of Newtonian political law appears to be at work in the entire immigration-reform universe: For every action taken on behalf of one constituency there is an equal and opposite reaction on the part of another, making compromise elusive. The Unintended Consequences Trap The second trap for lawmakers is the unintended consequences of any change in existing policy. A central difficulty is that there is no way to deal with the existing illegal immigrant population—usually reported to be about ten to 12 million people (78 percent of whom are said to be Latino and 56 percent from Mexico)—without encouraging results that lawmakers and voters find unappealing. For instance, the higher the bar is set for those in the country illegally to become citizens, the less likely those individuals are to take advantage of the opportunity. To avoid charges of granting “amnesty”, politicians raise the costs in terms of fines and the logistical difficulties with “touch back” provisions that require people to return to their home countries. But such measures then reduce the likelihood that the undocumented will enter into the program or follow it through to the end. In a national poll of 1,600 undocumented workers conducted by the firm Bendixen & Associates in June 2007, 83 percent said they would pay hefty fines and processing fees, produce evidence of employment and submit to background checks to get on a path to citizenship. But if they were also required to return to their home countries, their willingness to participate dropped to 63 percent. Raise the bar too high and people will go around rather than over it. The effect would be to perpetuate the status quo of a large class of people in the legal “shadows.” On the other hand, lowering the bar to legalization may encourage those thinking about entering the United States illegally to do so with the expectation that they too will eventually qualify for citizenship. Although many legislators stress the need for provisions disqualifying new arrivals from citizenship paths, misinformation and the mere possibility of qualifying is enough incentive for some to speed up their trip across the Rio Grande. Whatever the truth of this possibility, once television pundits like Lou Dobbs point it out, it is likely to raise the ire of many Americans who believe strongly in law-abidingness and worry about increased illegal immigration. Cracking down on employers who hire illegal immigrants also has unsavory consequences: It imposes significant costs on businesses, reduces the labor supply and threatens to raise prices on some products. Making employers do more to verify the authenticity of job seekers’ documents would also expand the counterfeit documents industry in the United States and Mexico. And proposals for a computerized registry to enable employers to verify the legal status of workers instantly arouse fears of privacy invasions. Getting tough with employers is also costly and bureaucratic. Government would have to expand to deal with the increased number of illegal immigrants picked up by law enforcement, meaning more deportation flights, holding centers, attorneys and judges. That would surely bust the confines of present budgets. Alternatively, seeking to aid business by creating a guest-worker program to keep the labor supply flowing brings more workers into the country who may overstay their welcome. After experiencing the higher salaries and greater opportunities afforded by the American economy, not to mention the difficulties involved in travel for seasonal work, some may be inclined to stay. In addition to the undesirable market-distorting effects this would have in both the United States and Mexico, it would also create a new pool of undocumented workers. A guest worker program also threatens to create an underclass of temporary workers. Although some economists disagree, many argue that admitting large numbers of workers with few skills increases the competition for low-skill jobs and exacerbates the U.S. income gap between rich and poor. As Robert Samuelson has pointed out, existing immigration policy imports poverty.3 The result is an unsavory trade-off between economic efficiency and humanitarian concern for immigrants on one side and the nation’s obligations to the poor, especially poor African Americans, on the other. Most analysts agree, too, that even with increased border enforcement, it is almost impossible to stop even a very large percentage of illegal immigrants from entering the country. And trying to do it imposes significant costs. Checking more motorists’ identification against law enforcement databases creates long delays at the border, slowing travel and commerce. Those crossing a better-guarded border illegally will be forced to take more difficult routes, increasing the number of deaths in the desert and turning up the volume of humanitarian outcry. In addition, further militarizing the frontier reduces the likelihood that anyone who makes it across will return to his or her home country. Finally in this regard, a substantial portion (roughly 45 percent) of the undocumented did not cross the Rio Grande, but flew here under the auspices of work, study or vacation and then overstayed their visas. Greater border enforcement does not mitigate this substantial aspect of the problem and may even aggravate it. Stricter enforcement of visa regulations may also have the undesirable consequence of reducing the number of foreign artists, musicians and intellectuals willing to endure the hassle to come to the United States. Still another variation of the unintended consequences trap is that policymakers are tempted to make questionable distinctions between “good” and “bad” immigrants.4 The former are usually in the country legally, work hard (often at skilled jobs), and want to integrate into American society. The latter are primarily illegal, some with criminal records, others on welfare, and all forced by their circumstances to skirt some rules. Of course, policymakers want to reward good immigrants and punish bad ones, but this is no simple task. It is not at all clear that the good-bad dichotomy really breaks down along legal-illegal lines. But even if it does, punishing bad immigrants almost invariably makes life more difficult for good immigrants, while favoring good immigrants makes life easy for bad ones. Moreover, reducing the public debate to “pro” and “anti” immigrant forces, with the attendant hectoring about racism and discrimination, pollutes the legislative atmosphere. Unintended consequences are a primary reason that “comprehensive” reform is attractive to lawmakers. It provides members of Congress the opportunity to try to overcome this policy trap by treating all the issues at once, preferably behind closed doors where tough trade-offs are obscured from public scrutiny. A comprehensive approach allows policymakers to create devices only politicians could love, such as “triggers” stating that only once the border is “closed”, according to some metric, can the State Department begin issuing Z-Visas to current illegal immigrants. But recent experience teaches that such a legislative approach can easily become too large and unwieldy to work—the 2007 Senate immigration bill was a telephone-book-sized 761 pages. In such a long and sloppily written bill, almost everyone could find something objectionable. Many did. The Federalism Trap The third trap has to do with federalism. In America’s compound republic, the more power given to states and localities to handle matters, the greater the chances are that some of them will adopt policies that certain members of Congress find unpalatable. Over the past decade, the dispersion of illegal immigrants across the country has exacerbated this trap. Previously concentrated in the Southwest and California, the percentage of undocumented migrants in other states—such as North Carolina, Virginia, Georgia, Massachusetts and Colorado—has greatly increased.5 Consequently, in the first half of 2006 alone, three-fifths of the states passed nearly sixty laws dealing with different aspects of immigration. A central issue to this aspect of American politics is that the Federal government and the state and local governments bear unequal financial burdens. States and cities pay for most of the public services illegal immigrants use, but states and cities are often only able to collect sales taxes. Most undocumented workers’ largest tax contribution to government comes in the form of payroll taxes, which go exclusively to the Federal government (the benefits of which are rarely claimed). Of course, economic growth generated by immigrants enriches the places in which they reside; nonetheless, the disparity between those who receive tax dollars and those who spend them produces testy intergovernmental disputes. To deal with illegal immigration, states and localities have adopted three different approaches. Dubbed “sanctuaries” by opponents, some welcome immigrants, even going so far as to encourage undocumented workers to use government services. The city of New Haven, Connecticut, for instance, decided to issue identification cards to enable illegal immigrants to open bank accounts, get library cards, prove their identity to local police and access city services. Other states and localities have adopted a laissez faire approach, refusing to use their resources to address the problem and barring police from handing arrested undocumented workers over to the Immigration and Customs Enforcement (ICE) service. But other communities, such as Hazelton, Pennsylvania and Prince William County, Virginia have adopted stricter methods for dealing with illegal immigrants. They have imposed penalties on employers who hire them, deny them access to public services and empower local police to cooperate with the Federal authorities. Some of these ordinances, however, are of dubitable constitutionality, and a few have encountered objections in Federal courts. Much then turns on the extent to which national lawmakers are satisfied with local policy. Actions by state and local officials serve as political footballs that Federal and state politicians hurl at each other. During a debate among the Democratic presidential candidates in October 2007, Senator Hillary Clinton found herself caught in a crossfire over then-New York Governor Eliot Spitzer’s proposal to grant drivers’ licenses to the undocumented. The difficulty is that those who favor reform at the national level can point to the punitive actions of states and localities, while those opposed can point to the effectiveness of local solutions. Yet supporters of localism quickly become vocal advocates of Federal power if state and local governments—in response to business interests or humanitarian concerns—turn a blind eye to illegal immigrants’ attending public schools, using the health care system and securing drivers’ licenses. On the other hand, supporters of national legislation become champions of decentralization if local authorities appear to be treating illegal immigrants with kid gloves. These shifting positions create strange political bedfellows and increase the political temperature surrounding the issue. The Money Trap Lastly, we come to the money trap. Any overhaul of the nation’s immigration policies will be expensive. Building fences, hiring more Border Patrol agents, investing in sophisticated biometric identification cards, and creating a new layer of Federal bureaucracy to monitor employers all cost money. Indeed, the Border Patrol currently has the largest annual budget ($1.4 billion) of any paramilitary force in the country. But spending more money forces lawmakers to do things they are loath to do: raise taxes, increase the budget deficit, cut spending elsewhere, or a little of all three. The current and pressing desire to reduce costs increases the likelihood that efforts to deal with immigration will be chronically underfunded. For legislators, this raises the unappealing prospect of withering criticism for ineffectiveness. In sum, because immigration reform packages cannot often draw strong partisan or bipartisan support, they require a strange brew of policies that appeals to an array of groups. But this renders the coalitions in favor of reform fragile and support for them tepid. Such coalitional weakness was evident in June 2007 when many Republicans and Democrats, for different reasons, became suddenly unsure that they needed a bill that might end up creating a situation worse than the status quo. The well-known “conservative” character of American political institutions—requiring the approval of three major power centers (the House, Senate and President) and many lesser ones within them—provides opponents of any measure ample opportunities to stymie it. The failure of the immigration reform bill in the Senate highlighted some of these features. In that institution alone, the prerogatives of the minority party and individual Senators to alter or obstruct legislation are sacrosanct. The reform coalition imploded when it was unable to limit hostile amendments by cutting off debate. Part of the recent difficulty was that too few lawmakers saw reform as being in their political interest. Many Democrats were staunchly opposed to any bill with a guest-worker provision, as it would offend unions and Latino voters. Many Republicans were deeply skeptical that the government is capable of reducing the flow of illegal immigrants from Mexico and Central America. In addition, while a few Republicans worry that doing nothing may hurt the GOP with Hispanic voters in the long term, not passing anything provides conservatives an issue with which they can rally their base in the short term. And Democrats can continue to cultivate Latinos, who have been pushed into their arms by much harsh rhetoric emerging from the right. Nonetheless, it is inevitable that immigration reform will return to the national agenda. When it does, how these four policy traps are navigated will be crucial to any bill’s prospects. A deft political touch will be critical; to prepare the ground for compromise, legislators will need to expand the range of the politically acceptable. How can this be accomplished? Two by Two There are at least two things America’s newly empowered political leaders can do, and two they should avoid, to make immigration reform a reality. The first thing they should do is to take a more modest and incremental approach: Don’t try to tackle the entire problem at once. Congressional leaders, for example, could take off the table the issue of how to regularize the population of illegal immigrants already in the country. This problem is so divisive that it is likely to overwhelm any legislative coalition. While this means kicking a big can down the road, it may provide the breathing room necessary to address other aspects of the problem, weakening the vice-grip of policy traps into which policymakers continue to stumble. Incremental steps lawmakers might take include creating new methods of employment verification (other than social security cards), combined with a limited or experimental guest worker program for agricultural workers to secure business support. Another incremental step would be for President Obama to reduce the pressures on legislators by using his administrative discretion. For instance, a series of symbolic efforts to “enforce existing law” might pacify restrictionist forces enough to give legislators the room to maneuver around the traps of multiple constituencies, unintended consequences and money. A final step might be to allow the states to take more action. While the increased activity of states and localities in the area of immigration policy exacerbates the federalism trap, it may over time help ease the pressure of other traps. Insofar as states and localities act as policy laboratories, lawmakers gain examples of what is (and is not) effective in political and policy terms. A combination of smaller, more feasible steps just might undermine policy traps such that legislators could, in the not-too-distant future, turn to the problem of illegal immigrants. A second means of addressing the barriers to reform created by policy traps would be for political leaders to discourage—to the extent that they can—Hispanic organizations and other activists from organizing public protests by immigrants. Whatever their good intentions, these protests energized conservative talk radio and provided more fodder for opponents than they pressured supporters of reform. The effect of restraining this constituency would be to help keep wavering legislators in a reform coalition by not driving the median voter in their districts into the arms of restrictionists. A corollary tactic would be to encourage Hispanic organizations to redouble their efforts toward increasing voter registration and turnout rates for Latino citizens, which remain comparatively low relative to their numbers in the population, despite some increase in 2008. Legislators respond with greater alacrity (and more often in the intended direction) to the ballot box than to street demonstrations. There are also two things Congress should avoid in order to make reform a reality. First, at an early stage of drafting the next bill, legislators should resist the temptation to craft policy entirely behind closed doors. Even with a somewhat reduced salience, immigration is still controversial enough that a zero-visibility approach won’t work. Moreover, experience has shown that legislation crafted in secret creates skepticism among potential supporters and provides opponents with a banner under which to rally. Instead, the relevant committees should discuss and debate the most sensitive aspects of the legislation; or if this proves too politically treacherous, there is the tried and true method of allowing a blue-ribbon commission to produce a detailed report. While such a deliberative process is slow and fraught with political pitfalls, it can address certain pieces of the unintended consequences, federalism and money traps. The public presentation of evidence on the existing state of affairs, and public evaluation of the possible effects of various courses of action, can provide the opportunity for public persuasion that may soften the ground for compromise. Second, in terms of legislative strategy it may be best to avoid starting in the political center with a bipartisan bill and trying to draw legislators toward it from the left and right. Compromise is often more difficult to reach and sustain when delicate balances are crafted in advance rather than having emerged out of negotiation. Instead, legislators may be better served if they can begin on one side of the spectrum and work their way toward the center. A Democratic Senate might float a bill from the left of the political spectrum and then work toward the center, trying to limit defections as they draw in Republicans. The appearance of giving ground from one side may help smooth legislative dynamics at the final passage stage. The American people remain ambivalent about how best to deal with the problems posed by mass migration, and the 2008 political season did not advance the ball. Just about everyone thought as 2008 began that both Parties’ presidential candidates would be forced to address the issue during the campaign, but that did not happen. The trick now is for the Obama Administration to assemble not a political but a governing coalition to tackle at least some elements of the immigration issue while the heat on that policy pot is lower than it has been for some years. It can perhaps best do so as part of its broader domestic policy agenda. One way to avoid some of the policy traps that bedevil the congressional process on immigration is to mix issues, thus allowing multi-sided trades, by pressing several pieces of legislation at the same time. Of course, this will take savvy political leadership and a good deal of retail politics. Even if success is liable to be a little easier now than before, it still won’t be that easy. But immigration politics never is. 1. Peter H. Schuck, “The Disconnect Between Public Attitudes and Policy Outcomes in Immigration”, in Carol M. Swain, ed., Debating Immigration (Cambridge University Press, 2007). 2. Weaver, Ending Welfare as We Know It (Brookings Institution Press, 2000), pp. 46–53. 3. Samuelson, “Importing Poverty”, Washington Post, September 5, 2007. 4. T. Alexander Aleinkoff, “Good Aliens, Bad Aliens, and the Supreme Court”, in Lydio F. Tomasi, ed., In Defense of the Alien: Proceedings of the Annual National Legal Conference on Immigration and Refugee Policy, Vol. 9 (Center for Migration Studies, 1986). 5. Jeffrey S. Passel, “Size and Characteristics of the Unauthorized Migrant Population in the U.S.” (Pew Hispanic Center, March 7, 2006); Rakesh Kochhar, Roberto Suro and Sonya Tafoya, “The New Latino South: The Context and Consequences of Rapid Population Growth” (Pew Hispanic Center, July 26, 2005).