From ILW.com, Immigration Daily, “Modern Immigration History For Congressman Cantor” by Harry DeMell, 30 Mar 2011.
“Those who cannot remember the past are condemned to repeat it.” – George Santayana.
In 1964 we repealed a Mexican guest worker program. Most of what congress has attempted to do during these past 47 years is to correct that mistake. Let’s first put this in context.
Modern immigration history begins with the McCarran-Walter Act of 1952. That act established deportable and excludable offences and established family and employment-based preferences. It kept a national origin quota system. In one form or another that system exists today.
There has been no fundamental change of this system since. We have only complicated it, watered it down, and created an overblown bureaucracy. Each change has made the system more complicated and less tailored to the needs of America.
At that time the McCarren-Walter Act was passed, we had the Bracero program, a foreign worker program begun during World War 2 to allow Mexican workers to legally come into the United States. It provided labor on the free market and allowed agriculture and industry to obtain the workers it needed. Mexican workers filled jobs during the war and after when there was a labor shortage here. The Mexican workers in the program were afforded protections with respect to housing, transportation, food, medical needs and wage rates.
That program operated at a time when there were very few undocumented aliens in large part because of the program. We were able to monitor and tax those workers and control our borders during World War 2 and the cold war. The Bracero program was eliminated in 1964 as a program that was not working. It worked all too well and was eliminated because of the fear of Mexicans living here by labor unions and xenophobes. The argument for ending the program was that there was abuse and exploitation of these workers. There was no attempt to fix these perceived abuses. The Bracero program did not lead to legal permanent residence. It did not guarantee permanent employment but only such employment as the economy really needed without the intervention of the Department of Labor. It allowed workers to come and go freely. They could return home for Christmas without the need to pay a coyote.
When was the last time there was a terrorist act carried out by a Mexican? (The drug problem is better covered on a criminal law web site.)
The elimination of the Bracero Program in many ways has led to most of the ills we define as a broken immigration system. An estimated sixty per cent of all undocumented aliens in the United States today are Mexican workers who would be legally here and documented had that program remained valid. It would result in it being significantly more difficult for ‘other than Mexicans’ to remain here as undocumented since they would stand out more and find it harder to compete with the documented Mexican workers. It would have negated the need for the amnesties of 1986 and the INA 245i and numerous other congressional actions and significant litigation: but more about that later.
Changes in the law during the 1960s and 1970s essentially complicated the law and led to a piece by piece breakdown of the system and encouraged more and more people to come here with the hope of playing an increasingly complicated system for loopholes and benefits. Each time, Congress gave them more and more opportunity in it’s need to show the public ‘how much it is doing’ by adding layers of bureaucracy: or more bureau crazy complications. The benefits went to government workers and lawyers.
In 1978 Congress established the Select Commission on Immigration and Refugee Policy. In 1979 Senator Kennedy had a report prepared called “U.S. Immigration Law and Policy: 1952-1979”. Among the members of the committee was Senator Alan Simpson. The ‘fixing’ would now start.
The dam broke in 1980 when President Carter allowed some 81,000 Cuban refugees into the United States. There was a media frenzy and it was one factor in President Carter’s defeat that year.
In 1981 the Commission issued a report: “U.S. Immigration Policy and the National Interest” which laid out what would become the “Immigration Reform and Control Act of 1986 (IRCA).
We went from a situation in 1964 where there were very few illegal aliens to a situation where by 1986 there were some 2 millions illegal or undocumented aliens in the United States.
During those years we passed the 1965 act, which equalized word-wide and per country quotas and added employment certifications and new refugee rules.
In 1976 we again played with the quotas and in 1980 passed the Refugee Act of 1980.
These bills were thought to be necessary because for the first time we had a significant illegal immigrant problem. It developed because there was no adequate means for employers to fill jobs and no process for these workers to comply with. Instead of recognizing that the problem was the lack of a guest worker program, especially for Mexicans, Central Americans and Caribbean natives, we made our laws more complicated and less enforceable.
By the mid-1980s the problem got worse and worse. Congress looked back at the 1981 report as dogma when in fact that report was written by people who were clueless that immigration and the economy are closely tied together and that only by blending the law to the real needs on the street will we ever be able to regain control of our boarders.
Then congress passed The Immigration Control Act of 1986. Congress allowed some 2 million illegal aliens to obtain residence and the path to citizenship while baring legal aliens from qualifying. The message was now crystal clear: complying with the law is for fools. To top it off there was a farm worker program pushed through by then Congressman Schumer to garner congressional votes in farm states where foreign workers were needed: the same workers who all along would have qualified under the Bracero program.
There was significant fraud in the amnesty program and it encouraged hundreds of thousands of undocumented aliens to enter the United States in order to qualify for some new program that might come along. Lawyers immediately started to litigate (who would have anticipated that?) and hundred of thousands of those illegals were able to get permission to remain here and obtain permission to work while the litigation continued.
Worse yet most people who had anything to do with the farm worker program believe that more than ninety per cent of all applicants had fraudulent papers. That program did absolutely nothing to address the needs of our farming community. Today most of them are American citizens and have brought their families to the United States.
The 1986 act also created sanctions and fines for employers who hire undocumented workers. It is not clear if anyone other than the delusional really believed that this would be enforced. Each senator and congressperson would discourage enforcement in his or her district in order to protect their employers, those employed and campaign contributors.
Employer sanctions have in fact had little impact on the issue of undocumented hiring.
All the king’s horses and all the king’s men couldn’t put Bracero together again.
In later years there were bills tweaking the system but not substantially improving it. There was a bill in 1986 making it more difficult to obtain legal residence through marriage, playing with drug exclusions, nurses, Chinese students and Soviet scientists, but in the end it was an effort to treat the symptoms while leaving the underlying disease alone.
The underlying problem is that we have a system that does not recognize the economic realities on the ground and how to deal with them. Those realities have to do with employment in the United States and it’s draw to our shores.
Congress again is talking about another amnesty to fix the problems that congress ‘fixed’ during the 2 million fix of 1986. Call it ‘Comprehensive Immigration Reform’ or something else, but now we have a twelve million-person problem. W[h}ere will this next amnesty take us? Will we have a thirty million-person problem to deal with in ten years?
We need a new western hemisphere guest worker program. Once we politicize it with quotas and Labor Department approvals it will get bogged down and become useless. Our current H-2 temporary worker program is not satisfying the needs of American business and encourages workers and their employers to disobey the law.
Congressman Cantor: Don’t forget the lessons of the past. Amnesties don’t work. Excluding most workers leads to the breaking of our laws. If we are to have any hope of controlling our borders, we need to tackle this problem first.
Any immigration reform should be wrapped around a western hemisphere work program modeled after the Bracero Program.
Harry DeMell has been practicing law in the areas of visa, immigration and nationality since 1977. He is a graduate of New York Law School. Mr. DeMell is an active member of the American Immigration Lawyers Association (AILA). He has been a member of the AILA’s annual planning committee, participated in their lobbying efforts, and is a mentor to other members. Mr. DeMell has also chaired committees for the Nassau County Bar Association and the Brooklyn Bar Association. He is a frequent speaker and a writer on important visa and immigration issues.