March, 2013

Fruits of Thought

Guest-Worker Program At Heart Of Immigration Reform

Might this be the year that immigration reform actually happens? If not, it is quite possible that the demands of the produce industry and other industries that need unskilled workers for a guest-worker program could be the blocking point for any immigration deal.

The issue of immigration is, of course, complex. During the Reagan administration, there was an amnesty granted to illegal aliens in exchange for tough border enforcement. The amnesty happened, the border enforcement never did, and, since that time, it has been difficult to imagine how a deal could come together.

The so-called “Gang of Eight,” composed of Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet and Flake, tried to square this circle by proposing a “Framework for Comprehensive Immigration Reform” that gives illegal aliens a legal status to stay in the country, but postpones broader rights — as to welfare and a path to citizenship — until various steps are realized, including certification by a special commission that the border security measures have been completed.

In the end, though, the Gang of Eight’s proposal is unlikely to resolve the problem. The example of how the proposal deals with those who overstay their visas is instructive.

Although the popular perception is that illegal immigrants all snuck over the border, that is not true. The Department of Homeland Security most recently estimated the illegal alien population at 11.5 million, and the General Accounting Office estimates that 4 to 5.5 million of those illegally in the United States entered the country legally, perhaps on tourist or student visas.

The bipartisan framework addresses this issue by explaining, “Our legislation will require the completion of an entry-exit system that tracks whether everyone entering the United States on temporary visas via airports and seaports have left the country as required by law.” This is interesting, and one supposes we can always have better tracking systems, but the lack of a tracking system is not what the GAO report says is holding back enforcement. The GAO says that the Immigration and Customs Enforcement’s (ICE) Counterterrorism and Criminal Exploitation Unit (CTCEU) arrests very few of these “overstays” because of “competing priorities.”

Obviously, the issue of the 11.5-odd million illegal aliens currently in the country is a big one, but the Founders, by establishing in the Constitution that anyone born in America is a citizen, ensured that there would be no permanent illegal underclass. If we stopped illegal immigration, even without new laws, ultimately all residents, however their families got here, would be legal because the children of illegal aliens are legal. So if we could address the issue of new illegal aliens, we could sensibly decide what to do with the illegals currently in the U.S.

The bipartisan framework, however, doesn’t demand any action with the information generated. Will we put out an APB on each person who fails to leave the country? Will we set up a dedicated police force that will not have “competing priorities?” The framework is silent and so it is hard to imagine how anyone hesitant on immigration could feel comfortable cutting a deal on this basis.

The Gang of Eight framework does show some interest in the concerns of the produce industry. Those illegals currently working in the industry would receive accelerated opportunities to become citizens based on continued work in agriculture. The framework also includes a plan for a “workable program to meet the needs of America’s agricultural industry, including dairy, to find agricultural workers when American workers are not available to fill open positions.”

Although the AFL-CIO and the U.S. Chamber of Commerce have come out with an agreed “joint statement of shared principles” on the issue of a guest worker program, and though the agreement represents some progress, the sides are far apart. Labor seems to accept the concept in principle, but also seems to want a federal bureau to study labor needs and issue recommendations as to the changing need for temporary workers.

This would be a slow process and would be unlikely to provide the labor agriculture needs in an expeditious fashion. Besides, the statement asks to create a “mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers.” As a practical matter, agreeing on a mechanism to do that is likely to be very difficult.

The produce industry is in a very difficult place when it comes to immigration reform. No amount of legalization or increased immigration is likely to solve its labor problems. It requires a dedicated program that provides entry to those willing to work in agriculture, but that very requirement creates a kind of employment ghetto that social activists are simply not likely to find satisfactory.

In 2007, then Senator Barack Obama voted to gut the guest-worker program from a bi-partisan immigration compromise. The sponsors of the bill thought that the program was essential to pass the law, which would have legalized millions of illegal immigrants. Without the guest-worker program, Republicans abandoned the bill, and the effort failed in the face of a Republican filibuster. In the immortal words of Yogi Berra, might we be in for déjà vu all over again?                pb