While most of the nation fixated this week on black and brown American heroes in Cleveland, the attention of immigration advocates diverged.  They vacillated between delight with the imploding anti-immigration conservative movement and nail-biting over votes on a flood of amendments to the massive, bipartisan Gang of Eight bill in the Senate Judiciary Committee.

To be sure, there remain troubling questions about whether the current immigration system in America is inherently racist in its design, its effect or its enforcement, as this sometimes heated debate involving Unai Montes-Irueste, who writes for Politics 365, and immigration lawyers, Susan Pai and David Leopold, reveals:

 

Whatever the right answer (I could argue for all three positions), that debate will be left to historians if an enlightened form of comprehensive immigration reform (CIR) is enacted this year.  That won't happen, however, if the poison-pill pharmacists on the right are allowed to administer a deadly dose.  

Take for example, Sen. Ted Cruz (R. TX) who proposes a fatal amendment to bar any path to citizenship for the 11 million undocumented immigrants in the United States. Or consider the Downton Abbey amendment offered by Sen. Mike Lee (R. UT) which would allow Americans to hire the undocumented but only if they served (apparently only the 1%) as "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, care-takers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use."

It's not only about preventing bad amendments but also preserving and improving on good ones.  Take for example an amendment that markedly improved on the Gang of 8 version which would merely have expanded the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) Ombudsman to also cover U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).  Proposed by Sen. Mazie Hirono (D. HI) and passed by voice vote, Section 1114 of the CIR bill creates a new "Ombudsman for Immigration Related Concerns" with the power to:  

• receive and resolve complaints from individuals and employers and assist in resolving problems with the immigration components of the Department [of Homeland Security].
• conduct inspections of the facilities or contract facilities of the immigration components of the Department.  
• identify areas in which individuals and employers have problems in dealing with the immigration components of the Department.  
• determine whether an individual or employer is suffering or is about to suffer an immediate threat of adverse action as a result of the manner in which the immigration laws are being administered, and intervene as necessary.  
• propose changes in the administrative practices of the immigration components of the Department to mitigate [identified] problems . . .
• review, examine, and make recommendations regarding the immigration and enforcement policies, strategies, and programs of [CBP], [ICE], and [USCIS].
• monitor the [three agencies' compliance] with law, regulations, and policy. [and] 
• request the Inspector General of the Department of Homeland Security to conduct inspections, investigations, and audits.

Consider also various amendments not yet voted on which are proposed by Sen. Leahy (D. VT). One would modernize and make permanent the EB-5 regional center program for immigrant investors. Others would enact family-based immigration benefits for same-sex couples by way of the "Uniting American Families Act of 2013" and another measure would recognize for immigration purposes all marriages valid under the laws of any state or country, including same-sex nuptials.

Ponder as well the amendments long espoused by Sen. Chuck Grassley (R. IA) who would add the heavy hands of hamstringing regulations and enforcement to the H-1B and L-1 bill, in ways even worse than the bad ideas already in the G8 proposal.  These amendments (Grassley 57 to 67), along with the base bill, would stifle innovation not only in the tech industries but they would also essentially declare illegal the modern business practice of global sourcing of services on which so many American companies and customers rely.

The point of this post is not that revelry over the fall of xenophobes and eugenicists is wrong; rather, it is that celebrations of that sort are unaffordable luxuries. That wine is just too rich at this late hour.  

Advocates for enlightened CIR must instead keep eyes peeled on the Senate Judiciary Committee and its fast-and-furious consideration of amendments which will profoundly reshape in ways unforeseeable the rules for employment- and family-based immigration.  This week's action will focus on Title IV which would transform (in good and bad ways) many of the most heavily-used nonimmigrant visa categories and create new classifications whose contours will be decided in the coming weeks, perhaps as soon as Memorial Day. 

So save your gloating for another day.  Now, keep the Congressional feet to the fire. Let the word go out in Twitter feed and Facebook update, in radio/TV talk shows on cable, broadcast and satellite networks, in blog posts and letters to the editor.  Let calls overflow the capacity of the Capitol Switchboard.  We need a modernized immigration system that functions well; not one hampered by bureaucratic red tape and heavy-handed, guilty-until-proven-innocent enforcement. It must spur 21st Century innovation and job creation in the private sector. And it must be true to our bedrock values of family unity and refuge for the persecuted. From your mouths to the Senators' ears.

It's been a momentous, startling and exasperating two weeks.  The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.  

• In Arizona v. United States, the Court -- notwithstanding the ludicrous claims of victory from AZ Gov. Jan Brewer -- voided most of SB1070 on federal preemption grounds, while all but inviting suits on the lone-surviving section, the vile "show-me-your-papers" provision that many fear will release a Pandora's opened box of racial and ethnic profiling.
• In National Federation of Independent Business v. Sebelius, a SCOTUS majority in an opinion by Chief Justice John Roberts, calling balls and strikes, upheld most of the Affordable Care Act. 
• In American Tradition Partnership v. Bullock, a five-Justice majority threw out a century-old Montana law banning corporate campaign contributions in light of Citizens United v. Federal Election Commission.
• In an Engagement with Director Alejandro Mayorkas and USCIS Economists, USCIS allowed practitioners of the dismal science to heap more mud into the already opaque pool of confusion that sits atop the EB-5 employment-creation immigrant-investor green card category.

Each of these events -- though some are quite positive -- carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come.  Here, then, are what pleases and what remains lodged in my craw.

The Arizona Ruling

The Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state's brand, while victimizing U.S. citizens and mixed-status families.

Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):   

The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

And paraphrasing the words (bolded below) of Voltaire, Spiderman and others before them, the majority homed in on the nub of the problem, a failure of people and polity to push for comprehensive immigration reform:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Still, the Court's majority should never have promoted the urban legend that immigrants are more prone to criminal conduct than the population at large.  Citing a much-criticized study from a partisanly wolfish think tank wearing nonpartisan sheep's garb, the majority decision observed:

[In] the State’s most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).

The Health-Care Decision

The word "immigration" came up but once in the opinion -- a discussion of Congress's relative authority under its constitutional powers to tax and to regulate commerce: 

[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)

National Federation of Independent Business v. Sebelius, however, is likely to be far more important for what was left unsaid about immigration -- the scope of comparative rights to health care afforded to legal and undocumented immigrants.

Concerning health coverage for the latter group, the subject is rife with obvious controversy, typified famously by Rep. Joe Wilson's impudent "you-lie!" charge to President Obama during the 2009 State of the Union address to Congress. The President was right then when he explained that the Affordable Care Act excludes coverage for unauthorized immigrants.

In truth, however, the legislation will probably have a mixed, uncertain impact on the undocumented:

At first glance, the Affordable Care Act's implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.

The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children's Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants -- both legal and undocumented -- receive medical care even without insurance.

The Montana Slap Down

This decision -- which says nothing directly about immigration -- is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United.  Immigration reform -- like every other policy decision facing post-Citizens United America -- will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.

The EB-5 Engagement with Economists   

Historians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naïve or inattentive occupants of the INS general counsel's office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules.

Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.  

Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists' pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government's supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge.

Truth be told, I'm no economist and I have no formal training on when a new job is "created." (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as "creative destruction" espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that "if you want to make an omelet you need to crack a few eggs.")  

Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied.

Sadly, however, as commenters on the EB-5 engagement have noted, the USCIS economists' rabbit-from-the-hat proclamations have been "startling," are affected by fear and nervousness, and made it "riskier for Regional Centers to do any development type of EB-5 projects. [and] . . . [harder] for potential EB-5 investors to ascertain whether an EB-5 project complies with the EB-5 requirements."

My view, which I shared with USCIS leadership, is this:

With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going -- in my view -- will destroy the program and hurt its salutary goals of investment and job creation in the United States.

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As you can see, it's been a long and exhausting two weeks.  I need a vacation! Guest posts (well-written and edgy) are welcome.