Krauthammer Got Played

Mickey Kaus Columnist
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Gang of 8 Fakery, Part 1: Remember that wacky Charles Krauthammer column from a month ago–the one that began by shredding the Marco Rubio amnesty plan but wound up endorsing it? Krauthammer’s reasoning at the time was strange, but (barely) defensible. The immigration plan we really want, he argued (correctly, in my book) is

“enforcement first, followed by amnesty. Yes, amnesty. But only when we have ensured that these 11 million constitute the last cohort.

“How to ensure that? With three obvious enforcement measures: (a) a universal E-Verify system by which employers must check the legal status of all their hires; (b) an effective system for tracking those who have overstayed their visas; and (c) closure of the southern border, mainly with the kind of triple fence that has proved so successful near San Diego.

“If legalization would go into effect only when these conditions are met, there would be overwhelming bipartisan pressure to get enforcement done as quickly as possible.”

Fair enough. But Krauthammer went on. There was “zero political will” for that ideal solution, he said. So he threw up his hands, embraced Rubio’s lesser-evil fallback. It would more or less “instantly legalize the 11 million illegal immigrants” living here by giving them “provisional” legal status–but it would

 at least [make] enforcement the trigger for any normalization beyond legalization. Specifically, enforcement is required before the 11 million can apply for a green card. [Emphasis added]

Krauthammer’s idea, in other words,was that the desire for green cards would be the carrot that would lead the newly legalized immigrants to pressure the government into actually meeting the enforcement preconditions. It was “a much weaker enforcement incentive than is legalization” itself, he conceded. “But it still is something.”

Unfortunately for Krauthammer, the actual text of the Rubio-Gang of 8 amnesty has now been released. It contains, Rubio’s office boasts, not one, but six enforcement triggers:

  1. The Department of Homeland Security (DHS) must create, fund, and begin a border security plan within six months.
  2.  DHS must create, fund, and begin a border fence plan within six months.
  3. DHS must achieve 100% awareness and 90% success in apprehending those trying to cross the border in high-risk sectors of Mexican border within 5 years.
  4. If DHS fails to achieve step three, a Border Commission made up of border-state governors and officials is created and charged with implementing a plan to successfully achieve 100% awareness and 90% success in apprehending those trying to cross the border in high-risk sectors of Mexican border.
  5. A universal E-Verify system [for employers to check new hires] must be implemented within 10 years.
  6. A visa-exit system must be implemented for all international airports and seaports within 10 years.

Of these, 1 and 2 are trivial–they require only that DHS come up with a plan, not that the plan works.  Trigger #3–90% success!–seems like a big deal until you get to #4, which reveals that the only consequence of not achieving 90% success is the appointment of a commission. Meanwhile, #6–the requirement of a visa-exit system–has been the law for 17 years, to no effect. The only significant new substantive requirement would seem to be #5, the “universal E-Verify” requirement.

So how are they going to get around #5? It only took Conn Carroll a few hours to figure out one way: by tying it up in litigation. A mere 13 pages into the bill, Carroll found provision  (c) (2) (b) of Section 3, which reads [emphasis added]:

(B) EXCEPTION.—The Secretary shall permit registered provisional immigrants to apply for an adjustment to lawful permanent resident status if —
(i)(I) litigation or a force majeure has prevented one or more of the conditions described in clauses (i) through (iv) of subparagraph (A) from being implemented; or
(II) the implementation of subparagraph (A) has been held unconstitutional by the Supreme Court of the United States or the Supreme Court has granted certiorari to the litigation on the constitutionality of implementation of subparagraph (A); and
(ii) 10 years have elapsed since the date of the enactment of this Act.

In other words, if the ACLU can just tie up the E-Verify system at the DHS and in court for 9.5 years after legalization (which happens six months after the date of enactment) all the legalized illegals get green cards anyway, whether the system is in place or not. The same goes for the exit-visa system.

The ACLU yesterday denounced E-Verify as “job-killing, costly and privacy-invasive employment verification” and pledged to “fight every step of the way”–so we’re off to a good start!

True, 9.5. years is a long time to stall a Congressional requirement, even one imposed by a Homeland Security bureaucracy that knows how to drag its feet.  But whatever parts of E-Verify are still standing after 10 years will almost by definition be good enough–since the law only seems to require that the DHS Secretary have “implemented a  mandatory employment verification system to be used by all employers”–not that it actually be in use by all employers, or have been “implemented” in a way that covers, say, 50% of new hires, or 40%, or 25%.  It just needs to be … “implemented” somewhere, in a form that’s intended to be scalable to cover “all” employers. Unless Rubio’s anti-enforcement Svengali Cesar Conda is the world’s worst legislative draftsman, there’s a reason why that crucial clause was left with a big logical hole in it. (Again, the same goes for the exit-visa trigger, which only needs to be used at “air and sea ports of entry,” which could mean two airports.)

But wait–why would DHS drag its feet? Remember Krauthammer’s carrot! If legalized illegals pressure the government to speed up the achievement of the triggers, they’ll get green cards faster, no? No. Getting “enforcement done as quickly as possible” wins them nothing, as far as I can see.** They still have to wait 10 years, even if E-Verify is universally implemented in year 4.

In other words, Krauthammer’s  second-best “incentive” does not exist. There is no carrot. Legalized “provisionals” have no reason to pressure the government into speedy enforcement (the way they would in a real Enforcement First scheme). But there is a big incentive for immigrant advocates to sue and hold up enforcement until 2023, ten years out, when the whistle blows and they win.

This is all ignoring the biggest factor the law’s language doesn’t discuss–which is that once the bill passes and 11million illegals are legalized, politicians will start competing for the Latino vote by shortening the 10 year path to a green card–to 8 years, or 6 years, and well, why should it matter if the E-Verify system isn’t anywhere close to universal and an exit-Visa system is only in place at a couple of airports?

It sure looks like Krauthammer got played.***


**–I could be wrong! It’s an 844 page bill and I’m talking about page 13. Who knows what Chuck Schumer’s lawyers have stuck in there? If I’m misreading their handiwork I will update.

*** — According to Politico, Rubio’s staff pitched his “Gang of 8” amnesty plan to “thought leaders, including at the National Review and Wall Street Journal editorial board as well as the columnist Charles Krauthammer.”

Mickey Kaus