"I'm having to deal with the reality of what is. You can't wish it away. What is, is." So says a glum Ohio Democrat, Governor Ted Strickland, according to reporter Laura Meckler in this weekend's edition of The Wall St. Journal ("Democrats Face Economic Facts: Updraft Unlikely"). Meckler's article reports on the prospect that Democrats "will lose their majority in the House," citing two nonpartisan election handicappers, the Rothenberg Political Report and the Cook Political Report.
What would shared power portend for immigration reform if the GOP took control of one or both houses of Congress? Before that question can be answered, Republicans must first resolve conflicting policy arguments among themselves.
Last night, conservative talk show host Laura Ingraham (and Kerry-like flip-flopper, "I was for the Ground Zero Mosque before I was against it") subbing for the eponymous host of the O'Reilly Factor, highlighted the tensions on immigration within the Party of Lincoln. In in a segment entitled "Is the Tea Party Toxic for the GOP", Ingraham confessed that she found it hard to distinguish immigration policy sentiments of "influential conservative" Michael Gerson, a former Bush speechwriter, from those of former Democratic Party Chairman, Howard Dean, and über-liberal, MoveOn.org.
Gerson's jousting with Ingraham was prompted by his recent Op-Ed piece in the Washington Post, in which he worried aloud about the Tea-Party leanings of the GOP on immigration:
A . . . question of Tea Party candidates: Do you believe that American identity is undermined by immigration? An internal debate has broken out on this issue among Tea Party favorites. Tom Tancredo, running for Colorado governor, raises the prospect of bombing Mecca, urges the president to return to his Kenyan "homeland" and calls Miami a "Third World country" -- managing to offend people on four continents. Dick Armey of FreedomWorks appropriately criticizes Tancredo's "harsh and uncharitable and mean-spirited attitude on the immigration issue." But the extremes of the movement, during recent debates on birthright citizenship and the Manhattan mosque, seem intent on depicting Hispanics and Muslims as a fifth column.
There is no method more likely to create ethnic resentment and separatism than unfair suspicion. The nativist impulse is the enemy of assimilation. In a nation where minorities now comprise two-fifths of children under 18, Republicans should also understand that tolerating nativism would bring slow political asphyxiation.
Tolerating or opposing nativism is not the only irreconcilable immigration difference within the GOP. In the immigration sphere, Republicans must decide if they are for or against: (1) protectionism, (2) small-business entrepreneurship, (3) intrusive government regulation, and (4) higher taxes. The posts linked in the preceding sentence suggest that these seemingly easy questions are surprisingly difficult to answer for a party that loudly proclaims its allegiance to free-market capitalism.
Setting aside their policy differences over how best to tackle the problem of illegal immigration, Republicans must decide whether they will push for reforms of the system of legal immigration that foster rather than impede economic prosperity. They must decide whether (a) Sen. Chuck Grassley (R. IA), who sides with Sen. Dick Durbin (D. IL), in opposition to the H-1B and L-1 work visa categories, will be their standard-bearer on employment-based immigration, or (b) the GOP will at last heed the long-repeated warnings of business leaders who foretell a deepening slide in our global competitiveness unless more innovation-friendly immigration policies are quickly enacted.
Republicans cannot have it both ways on immigration. They cannot remain silent when American Apparel, a company that has insisted on producing goods within the U.S. using domestic workers, reportedly suffers a sharp decline in stock price by the loss of a huge chunk of its workers because the federally-imposed system of employment-eligibility verification is broken, as Fast Company and the L.A. Weekly report. (WARNING: Those with Victorian sensibilities should NOT click on the Fast Company link and instead check out L.A. Weekly, while more worldly readers who'd like a new answer to the perennial presidential campaign question, "Boxers or briefs?, may run with Fast Company.)
Republicans will not win over many Mama and Papa Grizzlies, or their voting-age cubs -- especially those working in the Human Resources departments of companies owned by members of any political party -- if the immigration laws now in force treat them like (gender-irrelevant) "fall guys." As Ted Chiappari and I note in this week's New York Law Journal ("Lawbreaker, Naïf or Stooge? – The HR Representative and I-9 Crimes"):
While large-scale foreign-national employee prosecutions and removals in connection with worksite raids under the Bush administration attracted more publicity, the number of criminal prosecutions of business owners and managers also increased. The Obama administration has moved away from high-profile worksite raids, favoring instead “audits” (called “silent raids” by some) that in effect force employers to terminate the employment of unauthorized workers. Even so, Homeland Security Secretary Janet Napolitano in her Senate confirmation hearings also pledged “appropriate criminal punishment” for “unscrupulous employers.” So, regardless of which party is in office, employers and their human resources representatives have to be aware of potential criminal liability. (Footnotes omitted.)
The GOP would be wiser to consider another alternative than criminalization of employers under the immigration laws, perhaps something like the New Employee Verification Act (NEVA), a bill sponsored and defended by Rep. Sam Johnson (R. TX) that has been languishing since first introduced in April 2009. NEVA would take the onus of employment-eligibility verification off the backs of business and place it rightfully on the government (or authorized third-parties).
However the Republicans resolve their multiple-personality disorder on immigration, if they succeed in taking the House, they should use their newfound authority wisely and in the best interests of the nation. Rep. Darrell Issa (R. CA) would chair the House Oversight Committee, and wield the power to convene hearings, including sessions on the administration of our immigration laws. Rather than Obama-Administration witch hunts, as many fear, perhaps Rep. Issa will use his hoped-for new authority to ask what Republicans and surviving Democrats can do -- in legion with the Obama Administration -- to make the system of legal immigration a jump-starter for America's economy.