March 4, 2007 | National Review Online

Close the Immigration Vault with Employer Enforcement

Imagine we had only a single, government-chartered financial institution: the First National Bank. Imagine it had begun a new policy: Henceforth, the vault would remain open and stocked to the brim with no guard on site.

It remained illegal, of course, for anyone without deposits in the institution to remove funds. Indeed, account holders were expected to comply with longstanding rules: standing in line to transact with tellers, paying fees to transact at ATMs, filing burdensome currency-transaction reports, being penalized for bouncing checks or overdrawing their accounts. New customers, moreover, were turned away unless they verified their identities to the satisfaction of the institution and met threshold deposit requirements.

But the vault remained open and stocked. The doors of the bank remained open to anyone with the gumption to walk right in and grab with both hands.

Naturally, “anyone” turned out to be an awful lot of people. First National, though, was a monopoly with the ability to print treasury notes as needed. Its vault remained open. To discourage the human waves, the bank finally posted a sentinel or two. But the tide was overwhelming, and even arresting the occasional thief proved pointless because the prize was too enticing, the chance of suffering any real penalty too unlikely.

Theft was rampant and currency dramatically devalued as new money was minted, leading to a spiral of unintended consequences. Old customers fumed. New depositors dried up — for what was the point of adhering to the rules?

The bank, meanwhile, half-heartedly blocked sections of its perimeter with chain-link fencing and “virtual” impediments, like cameras. It even added a couple of guards. But these disincentives proved trifling for … the vault remained open. The hordes kept coming.

To appease growing outrage among depositors and a surrounding neighborhood teeming with intruders, First National finally added requirements to encourage presentation of a bankbook or some other customer identification. The bank’s systems, however, were not up to checking identities. Quickly, word spread that the new verification mandates were a joke. At the vault, the green light stayed on. The thieves kept coming — now bolstered by cottage industries in identification fraud and human-traffic direction.


At long last, the United States Congress stirred itself to action. Its proposal? A comprehensive solution.

There were, Congress assessed, far, far too many culprits to prosecute. No hope of getting the ill-gotten gains back. So for one time and — the statesmen insisted — one time only, they were going to forgive the malfeasance. And on top of that, to extinguish the unseemliness of uncontrolled lawlessness, they undertook to wipe the slate clean: Henceforth, all the thieves would become established depositors, possessed of shiny, new, legitimate bankbooks. Under existing law, that meant all their family members could eventually earn bankbooks too.

Amnesty?” howled the law-abiding, beleaguered citizens. “That’s your solution?”

“Well, you could call it that,’ the worldly legislators sighed, “but better to think of it as the carrot that paves the way for some real sticks.” That, they told us, was why it was called comprehensive reform. That was why it was so very prudent. The penalties for stealing were increased (now that amnesty had left no one to penalize). More crucially, the lawmakers promised that the magnet for all this would end, pronto: The bank was told to close the vault and open it only for legitimate customers.

Why, moaned the citizenry, do you need to have carrots for those sticks? And why oh why did it take you so long to figure out something so simple? Just close the vault. Surely that law could be enforced without goodies for the lawbreakers. And if the bank had just closed the vault, none of the other problems would ever have happened.

You’re not getting this, tut-tutted Congress. The lawbreakers have a lot of friends here on the Hill, and the laws you say are so obvious are actually not on the books right now. You want the vault closed? Fine … but then we need to eat the amnesty.

Alright, the citizens mumbled. We’ll swallow the amnesty this one time. But just make sure that vault gets closed and stays closed.

Absolutely, assured the Congress.

The vault, of course, was never closed.

There were feints at enforcement, nabbing the occasional handful of thieves. But it was a drop in the ocean. The resources devoted were sparse, and the same agency was saddled with the additional responsibility of issuing all the new bankbooks. It was instantly overwhelmed. And, as any sentient person could have told you, as long as the vault stayed open, the rush would be on.

Except, now the rush was worse. The amnesty told the world that thievery was not only tolerated, it was actively rewarded. The mob, already immense before comprehensive reform, grew geometrically — to more than four times its original size.


The First National Bank? It is, as you’ve gathered, a parable. But it conveys the real history of Congress’s last great comprehensive overhaul.

That was the Immigration Reform and Control Act of 1986 — popularly called the Simpson/Mazzoli law after its Republican and Democrat sponsors (respectively, Sen. Alan Simpson and Rep. Romano Mazzoli) — the better to stress its bipartisan and its thus inarguably “reasonable” nature. True to the breed, it stands as another in the long line of disasters inevitable when cold-eyed common sense is subordinated to cheery consensus.

“Immigration Reform and Control” certainly reformed the post-World War II immigration laws. Alas, it controlled nothing. Why? Because while politicians love prescribing carrots and sticks, their stomach for implementation is generally limited to carrots. That is the two-decade legacy of comprehensive immigration reform.

The open vault was the combination wages and welfare. It was already unlawful in 1986 for illegal aliens to work and claim public benefits. But if the police can’t or won’t enforce those laws, and employers and governments keep hiring, paying and providing, the aliens are sure to keep coming in droves. That is what happened.

The Simpson/Mazzoli arrangement was a cynical, gutless game. On condition of rewarding the then-existing illegal-alien population of three-plus million with green cards and, yes, a path to U.S. citizenship (i.e., as a condition of rewarding and thus encouraging more bad behavior), the law promised to close the vault. The palpable incentives for illegal entry would, we were assured, be removed by the enactment of sanctions against employers who knowingly hired ineligible employees. States and municipalities, like employers, would be required to verify documents proving employees and applicants were lawfully seeking benefits.

You know the rest of the story. The amnesty was granted but the vault was never closed. In 1992, the last year of the Bush 41 administration, with illegal immigration having crept up by millions since the Simpson/Mazzoli amnesty, there were enforcement actions against only 1461 companies nationwide. There were only 8027 worksite arrests. (See statistics compiled by financial analyst Edward S. Rubenstein.)

If you were an illegal worker, that represented about a point-one percent chance of being prosecuted. A pittance, to be sure … but it turns out to be a spectacular government enforcement performance when compared with succeeding years.

By 1999, with an illegal-alien population pressing at least 10 million, Clinton administration enforcement actions had plummeted to 417 companies; and worksite arrests — which had once doubled the Bush 41 level — had dropped to 2849. Percentage-wise, this barely registers. Yet, it is positively muscular compared to most of the Bush 43 years.

To be blunt, the current administration’s employer-enforcement record is, for the most part, an embarrassment, notwithstanding the jihadist threat and the fact that several known terrorists, including some of the 9/11 hijackers, have been illegal aliens.

From 2002 through 2004, worksite arrests catered from a paltry high of 485 (compared to 17,554 in 1997) to an incredible 159. Yes, that’s 159 aliens out of an illegal immigrant population so large it cannot precisely be fixed between expert estimates of 11 and 20 million — meaning, if you were an illegal-alien, you’d have about as good a chance of winning the lottery as being arrested for working in violation of the immigration laws.

And in 2004, the total number of companies in the United States of America given notice that they would be fined for employing illegal aliens was exactly three. Three!

Far from closing the vault, that’s hanging out a “Come and Get It” sign.


Under these circumstances, it would be an act of national madness to enact another comprehensive immigration reform with yet another one-time-only amnesty — the type GOP presidential hopeful, Sen. John McCain, is now partnering with left-wing champion, Sen. Ted Kennedy, and the Bush administration to push through.

It is also entirely unnecessary.

Proponents of the new immigration overhaul swaddle their claims in moral and practical rhetoric. After people have been here contributing to our national community for a number of years, they tell us, it is unfair not to legitimize their status. Besides, they are only taking the jobs American citizens and other legal workers are unwilling to do. And, in any event, you can’t conceivably deport in excess of 12 million people. None of these assertions passes the laugh test.

First, adults who enter or stay in the United States illegally know full well what the deal is. They have voted with their feet. They have decided that the benefits available here are worth running the risks of illegal status. That’s a rational, voluntary choice. There is nothing unfair or immoral about forcing them to endure the outlaw status they took on with eyes wide open — as others trying to immigrate the legal way stood on the outside looking in.

Second, if our economy really does support millions of jobs that Americans are unwilling to do, the solution is to expand the number of legal immigration slots, not to promote an underclass. Politicians on both sides of the aisle don’t want to do that. It is unpopular with unions, low-wage workers, and Americans concerned that we are not successfully assimilating the large immigrant population already here. Employers, furthermore, don’t like it because the combination of willing illegal workers and lax enforcement presents an opportunity to circumvent onerous bureaucratic, minimum wage, and tax requirements. The fact remains, however, that tilting the system toward lawful, transparent immigration and employment would be both moral and practical while simultaneously keeping the U.S. a vibrant, immigrant-friendly nation.

Finally, the dudgeon about not being able to deport millions of people is the reddest of herrings. Immigrants are not idiots; they are highly rational actors. They come because the vault is open. If the vault were closed, most would not come and many who are already here would leave. There would be no need for mass deportations.

Particularly if legal immigration mechanisms were improved, employer enforcement and public-welfare denial would induce the illegal-immigrant population to ebb on its own. The slim resources available for forced deportation could then be concentrated on the low-hanging fruit: non-citizen criminals who come to government’s attention because they have committed state and federal felonies. There would be no need to harass those whose only offense is unlawful presence. Instead of amnesty — which would, in any event, require incalculable resources to manage effectively — public funds could be more usefully dedicated to voluntary deportation assistance, so immigrants could go back home and apply for entry the right way.

The simple, inescapable answer to reining in illegal immigration is employer enforcement and choking off public welfare beyond such rudimentary, humane obligations as emergency health care and education for the alien children who are victims of their parents’ choice to flout the law. Absent the will to enforce the laws, no comprehensive reforms are possible; with the will, no comprehensive reforms are likely to be necessary.


The only urgency in the immigration equation is enforcement. Rampant lawlessness, the weighty burdens on the welfare state — these are real problems. To the contrary, the tribulations confronting millions of people who have willfully opted to break our laws and live illegally in our country are mostly of concern to them, not us.

There are many things Americans would like to see reformed before immigration. Social security, other exploding entitlements, and making the Bush tax cuts permanent come quickly to mind. Yet, our political class does not regard these looming crises as emergencies that must be addressed forthwith. So why the angst on immigration? Why the bogus claim that the lives of Americans will somehow be improved if the status of non-American lawbreakers is improved — especially when everything in our experience says the exact opposite is true?

To be clear, no one should say the status of illegal immigrants should be off the table. There is an unavoidable human aspect to this. The equities are such that compelling some illegal aliens to leave at this point would be unduly harsh — many have been here for a decade or more, have strong community ties, and no longer have any meaningful connection to their native lands. There is no good reason to target such people at this point beyond the happenstance that, like everyone else working illegally, they would stand to lose their jobs if and when employer enforcement becomes serious and sustained.

But the legal status of illegal aliens is not our emergency. In fact, unlike the failure of enforcement, it’s not an emergency at all. It’s a problem of the immigrants’ own creation. It makes no sense to address a non-emergency at its high-water mark, especially if the solution is a semi-amnesty — such as that proposed by McCain, Kennedy and the administration — which is certain to promote even more illegality. Real employer and public-benefits enforcement would drastically reduce illegal immigration without mass arrests and deportations, particularly if it is combined with repatriation subsidies and enhanced legal-immigration mechanisms.

To its credit, the Homeland Security Department has been stepping up enforcement in the last two years. But it’s not yet near where it ought to be. Plus, an interlude of improvement from rock-bottom performance hardly mitigates years upon years of abdication.

At this stage, government deserves nothing other than to be considered on probation. Unprecedented illegal-immigration levels exist because the national government has shirked its responsibilities for 20 years. It will need to establish a years-long record of keeping the vault shut before we could responsibly rely on its good faith as part of any interdependent, carrots-and-sticks reform package. Let’s see where we are, say, five years from now before we take their word for it that the laws will be enforced.

Employer and public-benefits enforcement may not be comprehensive. But it’s comprehensible. And it’s got a much better chance of working than McCain/Kennedy.