President Bush’s favorite pastime, clearing away the brush and deadwood that abound on his Crawford ranch, is well known. When it comes to promoting immigration reform, however, the president seems more at home lecturing from the bully pulpit than rolling up his sleeves and eliminating the tumbleweed and desiccated limbs placed as a barrier to reform by members of his own party.

To be sure, at key points in his presidency, Bush has called for a path to legal status for the 12 million undocumented foreigners in our midst and urged creation of a guest worker program to relieve pressures on our borders. He has also talked about tougher border enforcement, greater sanctions against employers who hire unauthorized workers and increased visa numbers in the employment-based immigration categories. From his days as a Texas governor, Bush clearly “gets” immigration. This is decidedly not a policy initiative fed to him by the neocons.

Eager to create a domestic legacy to offset his reversals in Iraq, Bush must now use the short window of the next few months to reach consensus with the Democratic majority and enough Republican moderates to enact comprehensive immigration reform. He made a good start during his State of the Union address supporting immigration reform “without animosity and without amnesty” and his visit with House Democrats at their issues conference on February 3 in Williamsburg.

The president is correct in urging a conclusive debate on comprehensive immigration reform. But spirited talk from on high will not by itself overcome the clever stratagems of immigration reform opponents such as Lamar Smith and Tom Tancredo in the House and Jeff Sessions, John Kyl and Saxby Chambliss in the Senate.
The challenge, as before, is to woo over the contingent of Republicans who may still wonder whether anti-immigrant bashing will lead to campaign victories in 2008 (despite Republican losses in the last election by vocal immigration opponents Rick Santorum, J. D. Hayworth and Randy Graf). Bush’s political capital, even on the domestic front, is at its lowest level. Enactment of comprehensive immigration reform remains within his grasp and may be one of the few attainable feathers in his legacy hat. If he dallies, or merely waits for Congress to put a bill on his desk, he will lose the momentum, and before too long, 2008 campaign considerations will make immigration reform impossible.

To overcome reluctant legislators, the president must lead on the issue. As President Clinton did with H-1B visa legislation when he held the office, Bush should convene a meeting with key legislators in closed-door sessions at the White House and hammer out the basic terms of a deal.

There are numerous ways to impose a suitable civil penalty for immigration-related law violations, but a path to legal status is attainable without being tarred as amnesty for illegals. The American people, fundamentally pragmatists at heart, have come to tolerate periodic tax amnesties and a criminal justice system that permits (indeed encourages) negotiated plea deals that trade guilty pleas for reduction in punishment.. Such arrangements are practical solutions to real-world problems. After all, it’s better to collect unpaid taxes and secure cost-effective criminal convictions, than to overwhelm the tax and criminal justice systems with resource-intensive investigations, proceedings, and trials.

A similar tradeoff can work in the immigration context. If Lou Dobbs’ nightly tirades on our “Broken Borders” have proven anything, it is that America’s immigration system is wholly dysfunctional and requires top-to-bottom repairs. But a comprehensive overhaul of our system must be practical and politically viable. It must take into account our need for future flows of workers and the undocumented workforce already here. The Swift Co. raids highlighted how an absolutist, enforcement-only approach to addressing the undocumented population is neither practical, nor viable: Does anyone believe the government has the will or resources for 8,000 more raids of this size, or that Americans have the stomach to watch while exponentially greater numbers of families and communities are torn apart?

A better approach to addressing the current undocumented population would instead require applicants for legalization to pay all back taxes and stiff fines for violating our civil immigration laws and that the able-bodied demonstrate continuous employment. A path to a green card and ultimately to citizenship should be created, but the undocumented must be required to head to the back of the immigrant visa queue, behind those who played by the rules. To eliminate the need for future legalization of new arrivals, a temporary guest worker program, with labor protections, is necessary.

Any new law must also take into account the sad lessons of the 1986 Immigration Reform and Control Act (IRCA). That law failed to consider the roots of the undocumented immigration problem and to look at the issue prospectively. To avoid finding ourselves in this same dilemma 10 years hence, any comprehensive solution must include a flexible new worker program, with full labor protections, job portability, and the opportunity to pursue permanent residence.
, Another critical failure of IRCA was that it did not require secure biometric identifiers, provisions that were stripped from the bill in the final hours for fear that it would encourage employment discrimination. After 9/11, however, and with the passage of REAL ID (or, better yet, an improved amended version that makes the feds rather than the states pay for its costs), any new reform legislation will surely require robust security and biometric precautions, as well as stringent privacy and civil liberties protections.

IRCA also failed because instead of creating tamper-proof employment authorization documents, it deputized the nation’s employers as examiners of potentially fraudulent documents and enforcers of the immigration laws — functions that should only be exercised by the federal government. Thus, key proposals under consideration would create a national electronic employment registry that an employer could query to confirm that a particular worker is authorized for employment. This would eliminate the dreaded and ineffectual Form I-9 (Employment Eligibility Verification).

IRCA also fell short because the implementing agency, the former Immigration and Naturalization Service, with insufficient Congressional oversight, adopted a miserly interpretation of the standards required to qualify for legalization. Litigation challenging, and ultimately overturning, the INS interpretations took many years to wend their way through the courts. This time around, Congress must hold the Department of Homeland Security accountable and confirm that as any new legalization program is implemented, there is adequate congressional oversight and a speedy avenue for resort to the courts.

The standards to qualify for legalization must be transparent, and easily applied. They must not encourage document fraud, as would the bill that passed the Senate last year. That proposal would have created a three-tier status based on elusive documentary proof of the number of years an individual lived and worked here without authorization.

No immigration-reform solution would be complete without addressing the plight of underage but undocumented foreign citizens who are trapped with no remedy despite having lived and studied here most of their lives. Our country must do better than offer a career as gang-fodder for these deserving youths, many of whom are academically excellent high-school students with no hope for a future or an opportunity to contribute to our country.

Finally, this debate over comprehensive reform of immigration provides a unique opportunity for America to reexamine (and embrace) the critical role that immigration can play as an engine for our nation’s economic growth. Our agricultural products are left to rot on the vine for lack of human harvesters. Highly skilled, well-educated and creative immigrants can and should be allowed to play a key role in supercharging the American economy. Yet, American employers have been hamstrung in their efforts to compete in the global economy by a visa system that is decidedly not open for business.

As part of comprehensive reform, employment-based nonimmigrant and immigrant visa quotas need to be expanded and flexible quotas that adjust with changing economic conditions must be enacted. Indeed, some quotas should be eliminated entirely. As Scott McNealy, chairman and co-founder of Sun Microsystems, has asked: “Why would you have any arbitrary number on smart people?”

Are the stars, the sun and the moon aligned in the legislative firmament? Will Bush, with a boost by Democrats and enough Republican statesmen, actively reach for the low-hanging, if sometimes prickly, fruit of immigration reform before it is no longer ripe? Or will the modern-day Pharisees and political grandstanders who decry immigration prevail? Let’s urge him to stretch. Then, with legacy and fruit in hand, he can return to hacking dead vegetation while sporting a big Texas smile.

First published by the Los Angeles Daily Journal Feb. 16, 2007. Copyrighted by the Daily Journal, and reprinted with permission.