by Rob Argento
Freedom Friends

The recently passed Arizona law making it illegal to be in the state without proper documentation papers has raised some significant questions concerning states’ rights and Federal law. The truth is, the Federal government has failed to control our nation’s borders. Once upon a time, when our biggest national security issue was the arrival of Irish bartenders who decided to overstay their tourist visas, that was one thing. New York, Boston, and Los Angeles were only mildly harmed by the arrival of these non-taxpayers. Today, however, the U.S. is faced with various operatives some of whom could have mass murder on their minds. This makes protection of our borders an existential issue. It no longer is a parking ticket; it has become a felony.
Part of the problem is the revolution in travel. The pilgrims were stuck on a sailboat for more than two months. Even those who came over on steamships were a week or so in arriving. Now, though, people land at major airports all across the country and we do not know who they are and have almost no time to find out.

Perhaps even more troublesome is the large number of foreigners who cross our southern border illegally. Unlike the doctors and nurses who go through the State Department’s lines to secure their visas, and who make a great contribution to our health care system, those who come across the Rio Grande illegally or simply overstay their tourist or student visas represent a complex problem for our country. For instance, their presence here provides an increase in the supply of unskilled and semi-skilled labor, thus driving down the wages of our most vulnerable workers. Moreover, they themselves are exploited by employers who use their illegal status against them to deny these individuals an honest day’s pay for an honest day’s work. If you are here illegally, you cannot always get health care, or join a union, or negotiate for better conditions—and the people who are here legitimately are undercut by your presence.

Of course, we have been down this road before. Back in the mid 1980s, there was a long, drawn-out debate concerning immigration—legal and illegal—resulting in the Immigration Reform and Control Act also known as the Simpson-Mazzoli Act after its main proponents. Rep. Romano L Mazzoli (D.-Ky.) was Chairman of the House of Representatives’ Immigration. International Law and Refugees Subcommittee. Sen. Alan Simpson (R.-Wyo.) chaired the Immigration and Refugee Subcommittee. Back then, bipartisanship was not just a slogan—there actually was some. In addition, the president of the University of Notre Dame, Rev. Theodore Hesburgh, led the bipartisan Commission on Immigration Reform. With the commission’s support Mazzoli and Simpson shepherded the bill through Congress, and Pres. Ronald Reagan signed it into law in November 1986.

According to Mazzoli, “We quickly realized that if immigration reform was to work and be fair it had to be a three-legged stool. If one leg failed, so would the entire bill. Leg one was improved security against illegal crossings at the border with Mexico…For the first time in U. S. history, we imposed penalties on employers who knowingly hired undocumented workers. Leg two was the H2A temporary worker program for agricultural workers. Leg three was what we called ‘legalization.’ Looking at the stool, it’s obvious that all three legs failed.”

The first key provision was employer sanctions. That is, it became a criminal offense to employ an illegal alien knowingly. The authorities were empowered to levy fines and other penalties on any employer who broke the law. To this day, any new employee has to fill out what is known as Form 1-9, and that requires presenting appropriate identification and a Social Security card.

An enormous loophole in the law, though, is known as the “affirmative defense,” whereby the employer is under no obligation to see if the documents presented are authentic or even belong to the employee. This naturally has created a brand new black market in forged and stolen IDs. While in theory this might have secured the border by taking away the benefits to crossing it illegally, in practice, it was a nonsolution. Pres. Barack Obama’s decision to send 1,200 National Guardsmen to secure a border 1,970 miles long would be no more effective.

Turning to the second leg, the H-2A program gives agribusiness a break on cheap labor: the proverbial jobs Americans will not take, such as picking fruit in California’s Central Valley in July. Part of the law requires that temporary farm workers get the same pay and treatment as Americans to ensure that U.S. wage levels receive protection. Sensationalist press reports and serious academic inquiries over the last couple of decades suggest these rules do not get enforced. It is obvious that the H-2A provision was included to get the bill passed and not to improve immigration control. A temporary worker can overstay this kind of visa as readily as a tourist or student visa.

The third leg of the stool had people up in arms: The amnesty it offered effectively rewarded breaking the law. It was supposed to be a one-time-only deal. Many illegal aliens who had been in the country since January 1, 1982, and who had not left the U.S. since that date, received amnesty, and others were placed on a path to legal status. In those days, there were reportedly about 3,000,000 illegal immigrants, and amnesty assuaged the concerns of political activists while basically acknowledging that rounding up that many people and shipping them home was not practical or cost-effective. Now, however, there are at least 12,000,000. So, not only did the amnesty provision punish the people who came legally and played by the rules, it failed to halt further illegal immigration. Things are so out of whack at present that illegal immigration outpaces the legal variety.

What is interesting, worrisome, and discouraging is how little the debate has evolved. This suggests that the conditions surrounding the issue have not changed and that previous experience has not taught us much. We are halfway through 2010 yet we are still engaging the same discussions we had back in the mid 1980s: What do we do about securing the border? How do we make sure there is sufficient labor without undermining American wages? What do we do about all the illegal immigrants already here? Simpson and Mazzoli are not on Capitol Hill anymore, but the same arguments go back and forth in Washington as if they never had left.

In addition, the 1986 law envisaged a static labor market; it did not take into account the nascent globalization that began at about the same time. Driven partially by ideology as well as technological evolution, one of the key factors in globalization is the increased mobility of labor all over the planet. If U.S. companies were to employ the best minds in the world, the most skilled practitioners of an art, our immigration policies would have to adapt to that.

In one respect, at least, US failed immigration policy actually helped spur globalization. One of the arguments for NAFTA (the North American Free Trade Agreement) was that American companies could build factories in Mexico to provide jobs for Mexican workers. If Mexican workers had jobs in their own country, the thinking went, they would not need to sneak across the border to look for jobs. But what actually resulted is that American manufacturing has suffered terribly from this. Looking back, it seems that even the best enforcement of the 1986 law and the most air-tight provisions probably would have failed under the weight of globalization.

Today, with the Federal government stuck in a political gridlock far worse than anything we saw back in the 1980s, it is no surprise that the Arizona legislature has acted to get illegal immigrants off the streets of Tucson, Phoenix, and Yuma. Arizona is likely within its rights under the Tenth Amendment to act where the Feds have failed—and, indeed, it is a matter of practicality that a state control its borders.

As with any emotionally charged debate, it is no surprise that some of the hysteria has created false perceptions in the public’s mind. For example, there has been ample discussion in the media that the police in Arizona now are entitled to walk up to anyone and demand their papers, as if the other side had won World War II. This absolutely is untrue. Under the law, there has to be some kind of legitimate contact before a person’s immigration status can be considered. In other words, the cops cannot just approach someone at the supermarket and demand ID. But if they have arrested someone for breaking and entering, such an inquiry is legitimate.

It is hard for a reasonable person to dispute the validity of this position. After all, if you are stopped for reckless driving the police will ask for the appropriate documents, and if it turns out that you are wanted for burglary, you get busted for that too. The Arizona law now directs police officers who already are engaged in a lawful contact with a civilian to check on immigration status as standard procedure.

This brings me to a personal situation that overlaps with a government issue. While in college I used to work as a security guard and in that position, I had to determine who was acting illegally and who was just horsing around. The task was not always easy and, frankly, it often was silly. It is one thing to spot a group of 14-year-olds trying to impress each other by behaving imprudently and quite another to notice someone out to do real damage to people and property. When does my suspicion become inappropriate profiling? What complicates the situation is that you have maybe a heartbeat or two in which to make a decision.

When it comes to suspecting an illegal immigrant that is where “probable cause” offers the best insight. No matter a suspect’s race or appearance, so long as an officer has a legitimate reason set down in law to pursue an investigation there should be no opposition to his doing so. But where probable cause is absent, then there is no legal basis for asking for identification or documentation.

One of the benefits to our form of government is that the states can employ various approaches to problems and, we can, as a nation, discover what works and what does not without committing the entire nation to an experiment. If California, New Mexico, and Texas do not like Arizona’s solution, they are entitled to enact their own legislation to address the situation. Eventually one of them will come up with a process that works best in deterring illegal immigration while protecting civil liberties.

Eventually, though, the Federal government must perform its share of duties as the circumstances are not going to get better with time. If they were, the 1986 law would have resolved this complicated matter by now. In the last quarter-century, however, things have only gotten worse.