The Cornyn Con

Mickey Kaus Columnist
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The Big Fig: Texas Senator John Cornyn has finally released the long-awaited text of his “RESULTS” amendment, allegedly designed to strengthen the border security provisions in the “Gang of 8” immigration legalization bill now before the Senate. Even before it was released, Cornyn’s amendment was derided by Gang-of-8 skeptics as a relatively insignificant change that would mainly give Republicans cover to vote for an amnesty bill. (‘See, we improved the border provisions.’) But Washington Examiner‘s Conn Carroll compares the text of Cornyn’s amendment with the language it replaces–and it turns out that the amendment isn’t as bad as feared. It’s worse!  Specifically:

1) It keeps the basic “legalization first” structure of the Gang of 8. That is, illegal immigrants are near-immediately given “provisional” legal status. Only then do promised enforcement improvements kick in. If Cornyn conditioned legalization on enforcement, he might actually come close–as close as he could come–to a “guarantee” that the enforcement measures would in fact be carried out. Instead, it’s “Give us legalization and we’ll give you enforcement in the morning.’  Once 11 million illegals are legalized, though, Democrats would have little incentive to follow through on that promise.

2) Ah, but there would still be at least a weak, third-best incentive–Cornyn’s “triggers,” if not met, would in theory prevent newly legal provisional immigrants from advancing through the system to get green cards and ultimately citizenship. The Gang of 8 bill promises this too–but doesn’t deliver (it requires mainly that DHS security plans be “substantially” implemented, as determined by … the secretary of DHS). Cornyn was supposed to make the Gang’s already weak promise real. But he doesn’t deliver much either. True, he’d require a 90% “apprehension rate” at the border, which sounds good. But this “metric” is a bureaucratic construct that’s easily manipulated. (Evidence from other sources suggests that the 90% rate is really closer to a sieve-like 50% rate).  And who makes the determination that this benchmark has been reached? Not the Secretary of DHS–oh no! It’s the Secretary of DHS and one of her subordinates, the Commissioner of Customs and Border Protection.  Early Cornyn press releases said he was going to require the Comptroller General (head of the independent Goverment Accountability Office) to also certify that the 90% “result” had been met. But that’s not there. Instead, Cornyn has the Comptroller write a report–which then has no effect on the green card process, reports Carroll:

[T]his report is not part of the path to citizenship trigger provision. The comptroller could issue a report saying none of the border security measures have been met and currently illegal immigrants would still get citizenship.

It’s the sort of fake “trigger” familiar to followers of Senator Marco Rubio. (His Gang of 8 bill, similarly, makes a huge fuss about a border commission that writes a report and goes out of business.) Maybe the reputed consultations of Rubio and Cornyn were productive after all!

3) Cornyn actually drops the Gang of 8’s requirement for border fencing. You can argue that this is a blow for honesty, since the Gang’s fence requirement is mostly bogus. (It lets DHS draw up the fencing plan-but if DHS wanted to actually build a fence it would have finished it by now.) Still, it’s hard to argue that dropping the fence requirement is a toughening of the bill. Why not give it some teeth instead? As Carroll notes, a fence is a metric that could be verified. Either you’ve built it or you haven’t. I suspect Cornyn, like many Texans, doesn’t like the fence, even though fences have worked around the world (including Israel) and in the United States (near San Diego) when they’ve been tried.

So, basically, the Secretary of DHS would have to pretend the border was “90%” effective instead of pretending that a plan had been “substantially” implemented. I suppose that’s a modest improvement. But any of Cornyn’s provisions could be undone by future Congresses–and, again, once illegals have their de jure amnesty (“provisional” legal status) Democrats would have a big incentive to do just that.

Majority Leader Reid has branded Cornyn’s plan a “poison pill.” But it’s hard to believe Reid can’t accept it (maybe with a fig-leaf concession of his own) if that’s necessary to move the Gang of 8 bill on to the House with a big majority.

P.S. The least phony part of both bills would seem to be their requirements mandating a computerized system (like the current E-Verify system) to let employers check and make sure the people they hire are authorized. But I’m not sure these requirements aren’t as vaporous as everything else.  Cornyn’s proposed law (echoing the gang of 8’s language) says that 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 ….”

That’s some mighty odd wording. I’d argue that if Cornyn wanted to require that all employers be using the employment verification system he would have required that “all employers are using the employment verfification system.” Or he would have said that the system had to be “fully” implemented. Instead, he gives DHS an out — if they’ve “implemented” a system designed “for use by all employers,” but it’s implemented partially, or in such a way that it’s only being used by 30% of employers, they can argue that they’ve satisfied this requirement. I don’t think I’m being paranoid here. … But you make the call!

P.S.–Or this call: Here are the phone numbers of Sen. Cornyn’s offices. You can tell his people directly what you think. That has more of an impact than you might expect. …

Mickey Kaus