Guest commentary: the next steps for immigration reform

At the same time President Obama was giving his speech about immigration in El Paso, Texas, I was sitting in the courtroom of U.S. District Court Judge Clark Waddoups while he issued a temporary restraining order on the controversial Utah law HB 497, the Utah Illegal Immigration Enforcement Act, written by Representative Stephen Sandstrom. I am filled with mixed feelings about what transpired yesterday on both fronts. I realize that when talking about immigration reform there are no easy answers, so I don’t envy anyone.

Ellis Island

After spending almost every waking moment of the past year working on creating a strategy both politically and legally to force Congress into working positively on comprehensive immigration reform, I think I can reasonably say I understand what the costs of both winning and losing this battle means.

To frame my concerns, I would like to preface it with my beliefs. First off, this is not an “us versus them” issue. Most Americans simply fail to realize that “we” are “them.” Illegal immigration is not about criminality – it is about economics, sometimes compassion, it is about America being responsible for our own actions and our ruinous trade policies, it is about a nation of immigrants, and it is about not just patching failed immigration policy but actually fixing it. We can build the biggest wall in the world, but what does it mean if our economy collapses in the meantime? People have watched their jobs go to China, wages have remained stagnant for decades, and in a down-turned economy they want someone to blame. It isn’t the immigrant’s fault any more than it is your own fault. This problem lives and breathes solely in Washington D.C

I do not believe our elected representatives in Washington are capable of fixing our immigration system at this time without drastic changes to how they do business. I also do not believe changing who exactly those elected officials are will fix it either. Each year the political rancor and division only gets worse. In the past few years I have come to believe that the only way to get the traction we need is to force the Congress and the White House to act and to do so in a deliberate manner. While I do not respect what Arizona has had to say on the topic, I understand and support their boldness in saying it. They made a major miscalculation, though. Fixing this problem is not a race to the bottom on how fast we can use fear as a political tactic to provide for our own self-interests. A few months before SB 1070 passed in Arizona, we already suspected similar legislation would arrive in Utah. That was an unacceptable outcome.

I am not going to recap our past year of battling over this topic in our Utah State Legislature here. Although easily misunderstood, the host of bills we passed or worked on, such as SB 60, SB 288, HB 116, HB 466 and HB 469, have been well received nationally. It is well documented, and by many accounts the good guys won despite really bad Vegas odds. To quickly summarize though, with a lot of hard work and innovative ideas we snubbed Representative Sandstrom and the “tag ’em and bag ’em back to Mexico” crowd. We opened up the discussion to other ideas besides typical white nationalist rhetoric. However, in order to pass our larger plan at the state level, which I referenced earlier about “forcing Congress to act,” it required some compromise. That compromise was accepting a grossly watered-down version of Representative Sandstrom’s original bill HB 70, which ultimately was HB 497, nicknamed “Arizona-lite.” Sure, no problem. I didn’t like it, but not accepting it would mean the end of the discussion.

Learning to cha-cha

Getting that temporary restraining order against HB 497 was a positive thing. The bill is divisive, and although the topic needs to be discussed as a part of the solution, it is not in and of itself a solution. Additionally, I think it was a stupid part of the solution and thus actually not much of a solution at all. In other words, it was a distraction. I fear that it will continue to be a distraction. Is this an issue about “criminals” or an “economic” issue? For the next month it’s an economic issue, according to Judge Waddoups. So once again we take baby steps, appreciating those little victories that have marked our progress forward thus far.

See, it’s not that I don’t think enforcement is a major component of this giant puzzle. I most certainly do think it is important. My problem is that the federal government with the Immigration and Reform Control Act (IRCA) of 1986, the Illegal Immigration Reform and Immigrant Responsibility Act (IRAIRA) of 1996, and then Arizona with SB 1070 got it wrong. We keep getting it wrong. In a forum at the Hinckley Institute of Politics recently, I spoke with Utah State Representative Chris Herrod about immigration problems and what the impact of the Utah laws would be. Now, Chris LOVES calling what we did “amnesty,” despite the fact that a state cannot provide absolution or “amnesty” for federal laws. One of his classic topics is about how acknowledging that illegal immigrants are here for any other purpose other than to deport them is incentivizing more illegal immigration. However, I pointed out that after the only time in American history where we DIS-incentivized illegal immigration with IRCA and IRAIRA, it was the only time in American history when our undocumented immigrant population spiked by 700 percent higher than it ever had. So it had the opposite effect, basically. In fact, it was the opposite of what everyone swore up and down in Congress would absolutely, positively, most definitely work when passing IRCA, then IRAIRA, then NAFTA, and then the stringing out of E-Verify. Maybe it’s ego, maybe it’s because scaring people and hate politics tends to raise more money than honest answers, maybe the government is totally incapable of admitting they are ever wrong? I honestly don’t know what their motivations are, but at least I know they are wrong.

So, with Paul Mero of the Sutherland Institute and State Senator Luz Robles (D-Salt Lake City), we did something totally radical that apparently no one who wrote IRCA, IRAIRA, SB 1070 or HB 497 bothered to do. When looking at the best way to deal with enforcement of this issue, we actually sat down with law enforcement. We talked to Homeland Security, Immigration and Customs Enforcement, the Utah Department of Public Safety, the Utah Highway Patrol, the sheriffs, police chiefs from across the state, and the Attorney General’s Office. OK, maybe not radical, but at least it was common sense. What we learned was infinitely helpful. (1) We don’t have the money to round up the estimated 120,000 undocumented aliens in Utah or 12 million immigrants across the U.S. (2) We do have the money to go after what are considered “Tier 1” criminals (drug dealers, gangs, human traffickers, gun runners, etc.) but law enforcement relies on intelligence assets who are themselves otherwise law-abiding undocumented immigrants. (3) Police don’t want to be forced into enforcing immigration law. They believe people would become afraid to call them. That would make the undocumented population a bigger target for crime perpetrated against immigrants and more exploitation. (4) Further punitive measures would also force those here to go “whole hog” with identity theft if they stay here. No longer just a Social Security number, but an approximate age and name to match.

These legislated concepts of enforcement do not work, and it is obvious that they have caused more problems then they solved. It’s fair to ask what does work on enforcement. I believe that good old-fashioned detective work is what works. Following up leads, using contacts, that is how our attorney general and ICE working in cooperation with each other, thanks to their 287(g) agreement, get business done. No need to violate the civil rights of anyone. There is no need to drop a costly dragnet on our entire state to pick up some soccer mom who is out of status. Now, there are still a lot of unknowns out there. However, by giving identity to anyone here illegally we remove the root cause of why identity is stolen for that purpose. If we then know who they are, we know who is left over and trying to avoid being on the grid. We shrink the pool of those who are potentially criminals to those who are actually criminals. We strengthen our relationships that work, not weaken them. Some may not like the idea of integration, but I am not comfortable scaring the living snot out of people with public policy.

So there it is. The temporary restraining order was one good solid step forward, and the distraction that this causes from being able to talk about the reality of the situation, such as with the economics, or about enforcement that works, was one solid step back. I have come to learn that maintaining the status quo is a good day, usually.

Don’t pander to everyone because you end up with nothing

In the sake of full disclosure, I talk to a lot of people in D.C. frequently about this topic. Sometimes that includes the White House staff. A year ago they were trying to refer me to be sued by the Department of Justice; six months ago they just didn’t want to deal with it; one month ago they shifted course and applauded Utah Speaker of the House Becky Lockhart for our work here and said they hoped it would become the model for national reform sometime in the unspecified future. I heard time and again that their plate was full and we would discuss it later. I admit to feeling pangs of guilt about having harassed them on the issue after they caught Osama bin Laden, though. I guess I wasn’t being shined on; they really were doing something important. Then true to his word, the president began looking at the problem. However, instead of leading the way, he did something he shouldn’t have yesterday afternoon, he pandered.

At some point within the past month or so, someone clarified to the president that without the Hispanic vote, he is going to struggle with re-election. All the dead Osama bin Ladens in the world don’t matter, since Americans are like goldfish. We don’t remember what we ate for breakfast, much less what happened a year and a half ago. He may be riding high right now on poll numbers, but Obama needs that vote tomorrow.

I feel there was a sincerity gap in his speech. There was too much talk about things that were meant to sound appealing to both of the polar opposites on the issue. Maybe that worked for health insurance reform, but it isn’t going to work on this issue. This is more complex than that. Just as there are many pieces to the puzzle of fixing immigration, immigration reform is merely a piece in a larger puzzle to get America back on the track to success for everyone. To do that we need to also be radically fixing our K-12 education, and making our higher education the most affordable we can possibly make it for our citizens. We need to quit condoning consolidation of mega-corporations and spur a new generation of start-ups. That is the only environment for success.  That was the kind of innovation that made America so successful in the first place. We have crushed the little guys in business, put education out of reach of many, and all of this keeps Americans fighting with immigrants instead of working with them. Immigration reform, tax reform, business reform and education reform, that is a tall order. Yet I believe it is exactly what needs to happen, and it needs to happen simultaneously. Our crisis is unprecedented in this country, but there was a time people said there was no way Obama could get elected either. If there is an honest will, there is way to do it.

The next few steps forward

This is the basis of two big concepts that started right here in good ol’ Utah. The first is the accountability concept. If you are an undocumented immigrant, we want to know you a little better. We want to help you not be exploited, since a fair wage for those who are currently undocumented means less depression of American wages (back to the “we are them” issue). It is in our own best self-interest to do this. Our public safety and national security are also best served when we know who these 12 million people are. That is an extreme break from the current path that encourages them to hide from us on the one hand and then demands their labor on the other. To clarify, I am not talking about a path to citizenship. I’m talking about an easy path to the work line, and an easier path than at present to the citizenship line, but two distinct lines instead of one amorphous blob.

The second major argument that I think the president needs to make is that the political answer is actually IN the states, and not Washington. Maybe not all states (insert joke about your own state here), but definitely some of them. Put simply, states are nimbler at trying things out. Most people don’t realize our successful national welfare reform in the ’90s had the state of Wisconsin to thank for that. Without Romneycare in Massachusetts, Hawaii’s unique health insurance mandates, even Utah’s insurance exchange, we wouldn’t have the Patent Protection and Affordable Care Act today. Just because we don’t want 50 different state laws regulating immigration, that does not mean states don’t have a role to play in the formation of a major piece of federal reform. States are already picking up the tab for a lot of the major costs associated with illegal immigration while watching the federal government bank money on payroll taxes or unclaimed tax refunds of immigrants. It’s hardly fair to expect state and local governments to pay for a problem they are told that they cannot under any circumstances do anything about. We understand the reality on the ground better than anyone.

Now what role the states can and should play is going to be subject to some debate, but I think it has two parts.

The first concept came about while discussing methods to positively influence the national discussion on immigration. It was our fictitious “waiver” idea, which the legal community has either subjected to intense ridicule or heralded as brilliant. It was a silver bullet meant to get around the idea that as policy makers we simply couldn’t discuss immigration at the state level without getting rid of the elephant in the room of pre-emption. So the understanding of it, I think, just depends on how well you see using legislation as a political negotiating tool. Understand that resolutions passed at the state level intended to direct a message to the federal government might as well be printed on toilet paper for all they are worth. We needed a bill if anyone was to take us seriously. However, in order to avoid landing almost immediately in court with the Department of Justice, we conceptualized that the bill depended on a waiver provided by the federal government in order to go into effect with a deadline to ensure they heard us. The problem is that there is no such thing as “a waiver”; federal law is federal law. We were more interested in expanding the discussion about immigration, not spending every meeting discussing the merits of the Supremacy Clause of the U.S. Constitution. Although I am surprised at how the concept has been received and that people are actually trying to find a way to make it exist. So, tip of the hat to our Attorney General Mark Shurtleff on that, and surprisingly to the DOJ for agreeing that we need the discussion.

What I thought was that it would allow us a worthwhile excuse to force the discussion about something other than what Arizona did. We would become the proton to their neutron. As it turns out, though, maybe the concept is not so crazy after all. Almost a year after coming up with the idea, people in Washington started realizing that it might make for good politics too. A few days before HB 116, along with HB 497, passed, we got word that the White House was promoting the idea of a “waiver” system for states to get out of the PPACA if they met a series of criteria and basically could do a better job. I like the “put up or shut up” concept. Utah may seem like a weird place, but we have the best-run state Legislature in the U.S. year after year, and we are one of the few states that might be treading water but at least are not sinking. There is method in our madness – well, sometimes at least.

So what is a waiver, then? Well, it’s an act of Congress. Not a 2,000-page novel, but a couple-page opt-out, particularly on IRAIRA and IRCA and a few other items in Title 8, so we can experiment for a determined period on behalf of the federal government. With 50 different states that view the exact same issue differently, we may never have a perfect immigration system. However, I know we would be much better served to at least look at the results of very calculated experiments within certain states that are willing to try (and can afford to try) solutions before passing any sort of federal package. I hate using the term “laboratory of democracy” since it is so hokey, but that is what we are talking about. The amount of political capital for Washington to do this is minimal. In fact, it is a great excuse for them to say they are proactively doing something without in fact doing anything. They simply schedule the terminus of the program at the least politically volatile time in between presidential elections and voila, shake-and-bake immigration reform, complete with empirical data about how big or little the actual problem is and crib notes on how to fix it, with a primary focus on those people who are already here in the United States illegally.

The second role I think states need to have in this discussion is a permanent seat at the discussion table. There are a variety of push/ pull factors that bring people across borders. I do think that it is, and always should be, the responsibility of the federal government to deal with matters of immigration and citizenship. I think that the federal government has done a poor job, to say the least, in addressing the reality of labor demands though, and an even worse job in addressing the needs of families. The states, on the other hand, know this issue inside and out. There is a difference between what you hear in Washington from the lobbyist for the Dairy Farmers Association and a state representative getting chewed out by Bob the dairy farmer in their district. I think it is a mistake to define quotas so narrowly for who can come here and who cannot. Not to mention our draconian rules about violators of immigration laws that make no sense. Despite how awesome we tend to think America is, not everyone who comes here expects or even wants to be a citizen. Some people just want to come to work.

We need a more fluid dialogue through which states can inform the INS of their actual needs and the INS can make that a reality with one-tenth of the red tape that exists now. We put a man on the moon for goodness’ sake, but we can’t figure out how to process farm workers or even computer programmers to work here? This is one instance where I believe the system is actually broken by design. It has to change if we are ever going to be competitive in the global markets of 10, 20 or 30 years from now.

Admittedly I am not a big fan of being told what cannot be done. I tend to buck the system. I break the rules continually. Often I find myself being oppositional to authority figures. This all tends to frustrate my wife to no end, but God bless her patience with me.  I may not see eye to eye with staunch conservatives, but that doesn’t mean I want to kick dirt in their face either. These problems are American problems, and both sides, last I checked, are still Americans. If people cannot lay down their petty grievances, there is not going to be any America left but a worn-out husk of a once-great empire. We are just getting warmed up on this fight, but success depends on reasonable, rational people helping. There has to be solutions from a million sources, not just our politicians. If you can add something to the discussion, do it. This is the time for us to rebuild an America for everyone, not just the chosen few.