Preliminary Search for Loopholes in a Cloud: I’ve been trying to think of the right metaphor for the giant Corker-Hoeven amendment, the one that is reportedly giving the Gang of 8’s immigration bill enough votes to pass the Senate. Sure, it’s a fig leaf–but a fig leaf is usually something insignificant-yet-real. This is something grandiose that’s a fraud.
The best I can come up with is this: A man comes into your restaurant. You recognize him–he’s a guy who ate a $100 meal last year and said he’d pay later, but he stiffed you. Now he’s back and wants another meal on credit. He senses you are wary and makes a new offer. “This time I’ll pay you … $2 million! How can you refuse? It’s 2 million dollars!”
You get the idea. Just try and collect.
Similarly, Schumer, Durbin & Co. have offered a deal to Corker, Hoeven, and conservatives. In essence, it’s this: You’ll immediately legalize 11 M immigrants who are unlawfully in the country. They’ll get work permits renewable ad infinitum–we call it “provisional,” but basically they’re in. Yes, we know that in 1986 we passed an amnesty and promised enforcement that never happened, but this time we promise to … militarize the Southern border! Hire 20,000 new agents! That’s the ticket. Double the Border Patrol! Spend $20 billion. Quadruple the budget. Drones in the sky–triple the number of drones. Drones! Sensors on the ground! 700 miles of fence! 100% use of E-Verify! “I don’t know what more to do, short of just shooting people,” says Gang of 8-er Lindsey Graham.
Just try and collect.
Nothing this Congress does, remember, can prevent future Congresses from reneging on the back end of this “legalize first” deal. Budget considerations alone will mean the advertised “surge” won’t be sustained–as Obama’s earlier 1,500 man National Guard surge wasn’t sustained. Future lawmakers will be looking around for “offsetting” spending cuts and that bloated 40,000 man border patrol will stick out like a nail that wants to be hammered. Plus, once
Democrats have eaten their meal illegal immigrants have their legalization in hand, Democrats will lose 80% of their motivation to make good on the law’s elaborate promises. They’re already unhappy with the back end of the deal–Sen. Leahy calls it “a Christmas wish list for Halliburton.” Meanwhile, militarizing the border is drawing immediate protests. Business interests–especially farmers–can be expected to oppose the requirement that they use a computerized system to check new hires. There will be little to stop these forces–the ones that have blocked enforcement until now–except some Republican pols saying “But … but you pwomised!”
It’s true that Democrats (and immigrant advocates, and the ethnic lobbyists like La Raza) will want the 11 million newly legalized immigrants to be able to get green cards and embark on the fabled “path to citizenship.” But their answer won’t be to fulfill the cartoon enforcement promises of Corker-Hoeven. It will be to water down the requirements for green cards. Republicans are going to resist that? They want to alienate the growing Latino voting bloc? After they tried so hard to take the whole issue “off the table” in 2013? **
This the reality to keep in the front of your mind when discussing the details of Corker-Hoeven’s border security requirements: None of them is actually going to happen! The formal requirements will be gutted by future Congresses and bureaucrats. We’re just trying to figure out if there’s really anything they’ll have to gut.
With that in mind, here are some initial tentative impressions of Corker-Hoeven’s 1000-plus pages of unenforceable, soon-to-disappear promises: [I will update and correct as necessary. Here is Byron York’s more thorough take from yesterday.]
The Mexican Border Fence: The bill seems to require that, before green cards can be issued, “no fewer than 700 miles of pedestrian fencing” be “in place.” Since there are at least 352 miles in place already, that’s a maximum requirement of 348 new miles, on a 2,000 mile border. The fencing doesn’t have to be double layered (it “may” be that) and it doesn’t have to replace the existing, pathetic, hop-over-it “vehicle barrier” (this only has to be done “where possible”). The Department of Homeland security doesn’t have to build anything in any particular place–there’s a big escape clause that says the Secretary can determine that it’s not “the most appropriate means to achieve and maintain effective control” at any one location. (So much for Marco Rubio’s idea that Congress was going to write a plan so specific it would tie Janet Napolitano’s hands.)
But arguably (and I suspect it’s not that simple) DHS has to build 348 new miles of fence somewhere on the border.
Until, after legalization. a future Congress says it doesn’t. The way it gutted the similar 2006 Secure Fence Act, which also required 700 miles of fence.
Fancy new technology: May be avoided by the Secretary of DHS if she thinks “alternative technology” is “at least as effective.” So all Corker-Hoeven’s absurd Umberto Eco-style specifics about “22 … night vision goggles” in Yuma and “85 unattended ground sensors” in El Centro are just for show.
E-Verify: Here Corker-Hoeven uses the same language as the original Gang of 8 bill–language I still think leaves a big loophole. Before green cards can be issued, DHS must have
“implemented the mandatory employment verification system required by section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a), as amended by section 3101 of this Act, for use by all employers to prevent unauthorized workers from obtaining employment in the United States.” [Emphasis added.]
So they have to “implement … the … system … required … for use by all employers.” Does that mean they have to implement –partially? fully? “substantially”?-an E-verify-like system that’s designed for and required of all employers? Or does it have to actually be in use by all employers? The language is ambiguous–and since it would have been easy to write language that wasn’t ambiguous (e.g. “in use by all employers” or “95% of employers”) you have to think the vagueness is intentional, designed to give the government an escape hatch if, say, the system’s only used by 50% of employers.
Border Patrol: “[N]o fewer than 38,405 trained full-time active duty U.S. Border Patrol agents” must be “deployed, stationed, and maintained” along the border. If there are only 38,404, no green cards! Right.
“Honey, it’s that esteemed solicitor from Nigeria emailing again. I know he’s a con man but this time he’s offering $20 billion! I think I’ll answer him.”
P.S.: The Corker-Hoeven revision also keeps the Gang of 8’s run-out-the-clock Litigation Escape clause–meaning that if after 10 years lawsuits have prevented one of the requirements from being carried out, green cards get issued anyway. This sets up the bizarre situation in which a court 9 years from now might want to merely delay some DHS action but the effect would be to eliminate, not delay, the law’s “trigger.” Why not just say that if the requirement is delayed by a lawsuit the green cards are too? That might discourage lawsuits … ah yes, I see the reasoning now.
** – There was a do-able deal–a variety of deals, actually–that would have guaranteed completion of the border security “back end” of Corker-Hoeven deal. The deal would be to make it the front end–require that its targets be met before any legalization. Or move step-by-step with smaller, balanced confidence-building measures–the DREAM Act mini-amnesty in exchange for E-verify, etc. It’s entirely possible “the 11 million” could get their citizenship faster under these scenarios than the Senate bill’s 13-year default position, since once all the targets were met there’d be no need to append gratuitous delays (which seem mainly intended to appease conservative voters). And the enforcement targets would be met.
But that was the road not taken–vetoed by Democrats who’d rather have no bill (and an election issue) than enforcement promises they couldn’t renege on.