|The Bush plan is being sold as ending
the illegal immigration problem, Martin said, calling the idea “totally
Posted February 12, 2004
Bush Plan Fails to Address Serious
Immigration Issues, Martin Says
The Bush administration's recently proposed immigration plan will only
add to the problems facing immigration officials and could depress U.S.
workers' wages if approved by Congress, said law professor David
Martin, who served as INS General Counsel from 1995-98. At the American
Constitution Society's Brown Bag Lunch Series Feb. 9, Martin called
the plan vague and poorly conceived and said administration officials
apparently did not consult with long-time immigration officials while
Martin said his initial reaction to the plan was to quote former tennis
champion John McEnroe: “You cannot be serious.” Martin said he supports
steps to address the situation of the undocumented population in general,
but “I don't see how to do this quickly or on a short timeframe in a
way that is sustainable in the long run.” Quick fixes, he said, will
probably only compound the problems posed by illegal migration.
Bush's plan calls for current undocumented immigrants working in the
country to receive temporary-worker status for three years. Employers
could hire foreign workers in the future as well if they cannot find
U.S. workers for jobs, in what Bush called a “quick and simple process.” Bush
has repeatedly suggested “he wants to match up willing employers and
Of the estimated 9 million illegal immigrants in the country, 6 million
are currently in the workforce, Martin said, and more often in regular
businesses than working in underground or off-the-books labor, as stereotypes
suggest. The typical undocumented migrant's working situation is “not
necessarily the kind of unending oppression that the press has tended
Martin noted that lawmakers in 1986 offered a one-time amnesty program
covering most undocumented workers in the country, but also tried to
beef up enforcement of legal migration by requiring employers to verify
potential employees' legal work status or face consequences.
“Unfortunately the advent of this system coincided with the advent of
desktop publishing,” Martin wryly noted. The 1986 legislation did not
require employers to probe for further information if they merely suspected
that workers supplied forged documents to get a job—they only had to
reject such applicants if documents were obviously invalid. Furthermore,
employers might face a discrimination suit if they did not hire someone
based on such suspicions. “Since then, we've developed a much larger
undocumented immigrant population,” he added.
Martin said there is talk that Bush's plan is an election-year ploy
to gain support from Latino voters, but “it matches up oddly with the
greater interest in tougher enforcement that grew out of the September
Martin also commented on the track of Bush's statements on immigration.
After taking office, Bush made statements on immigration reform and in
meetings with Mexican President Vicente Fox suggesting he might grant
amnesty to Mexican immigrants; at the time, Martin explained, he was
not well-staffed in immigration policy, so he may have had no senior
aides with immigration experience to tell him it might be a more complicated
issue. “By the summer of 2001, you could see them beginning to back off,” Martin
said. When he met with Fox early in September 2001, “Bush was clearly
in back-track mode.” September 11 “seemed to provide a convenient way
for President Bush to step back from statements made pretty early on.”
Administration officials have suggested the new plan will help them
track potential terrorists entering the country, but Martin cautioned
against this assumption. “Those making the most exploitative use of underground
status are not the ones likely to come forward,” he said. Security screening
isn't foolproof anyway, he added.
Overall Bush's proposal has “a lot of incompleteness.” Martin chided
the administration for raising the expectations of undocumented immigrants
and employers without thinking hard about the issues first.
The plan doesn't have measures to move such workers toward permanent
legal status, but doesn't appear to preclude them from seeking permanent
status either, Martin said. Under the plan, temporary workers would be
allowed to visit their home country and return during the three years
they have status. Temporary workers may also be able to bring their families,
if they can support them, which raises additional administrative issues.
Martin noted the federal government has actually been bolstering the
Border Patrol over the last decade, and has adopted a new strategy of
placing officers in visible spots to deter Mexicans considering crossing
the border. Martin called the strategy successful in that it prevented
mass crossings at popular locations (which often happened at night, when
only a few could be caught), but it also “has driven the migrant pattern
to more dangerous parts of the border,” so more have died while trying
to cross. Some say the strategy forces Mexicans to stay longer in America
because they can't cross back to Mexico to visit friends and family easily.
The price of smuggling immigrants has also shot up ten-fold since the
policy change, so that some Mexicans can't afford the trip. “It's quite
likely that [the new Border Patrol strategy] has had an impact in deterring
immigrants,” Martin said, although hard evidence has not been produced.
Some question whether Bush's new plan has enough incentives to bring
the undocumented population out of hiding, but “I'm inclined to think
in the end [the three-year limit] wouldn't be too big of a barrier” to
coming forward, Martin said. Congress might be persuaded to pass further
measures protecting such workers by the end of the period, Martin speculated,
or the current workers may come to realize that the immigration agency
probably won't be any better equipped then to deport those who don't
leave as required.
Another problem with the program is that the temporary-worker status “leaves
the worker vulnerable to exploitation,” Martin said. The plan gives employers
a lot of power over such workers, because they can threaten them with
loss of status.
“In the end the Bush plan amounts to a huge gift to employers,” Martin
said. “What is required of this ‘quick and simple process' to try and
find U.S. workers?”
The process for finding U.S. workers over foreign workers is so undefined
that if it only depends on an employer-employee bargain, employers “could
just offer minimum wage for every job.” Martin said he suspected that
if the plan goes forward, a “prevailing wages” requirement would be added,
where employers would have to offer a given job at the prevailing wage
for the position and location. But prevailing wages are hard to monitor
and in any event wages could grow stagnant if employers take advantage
of the plan.
Martin said the Department of Homeland Security is still getting on
its feet and already is falling behind in addressing an intake of 7 million
applications a year. The plan could double that number “without much
of a sign that [the administration is] going to increase the resources
of that agency.” The Department of Labor will also likely play a role
policing work conditions. “Both the Department of Homeland Security and
the Department of Labor are not equipped to deal with this,” Martin said.
The plan is being sold as ending the illegal immigration problem, Martin
said, calling the idea “totally illusory.” Martin said there's no reason
migrants wouldn't continue to come outside normal channels, since employers
are unlikely to recruit someone still living in China, for example. “Most
of the social science for migration indicates it's a network phenomenon,” he
added. Once one undocumented worker gains status, as happened in 1986,
they provide an anchor that makes it easier for family members or friends
Because the program doesn't necessarily lead to permanent status, Bush
can appease the right by pointing out the program doesn't offer amnesty
and therefore doesn't reward law-breaking. Other proposals milling around
Washington focus on “earned amnesty,” in which undocumented workers now
working in the United States for a certain length of time could get full
Martin said earned amnesty alone won't solve the nation's immigration
problems either. He supported spending a few more years creating a better
immigration management system, tightening enforcement, and improving
employer sanctions by using a system to verify the documents presented
at the time of employment, for example. Once such a system is in place,
it may be appropriate to talk about some kind of earned amnesty. “All
of this I think needs to be a gradual process,” he said.
Despite the fanfare surrounding Bush's announcement, Martin said he
would “be surprised if something gets enacted this year.” The United
States goes on cycles of immigration control and laxity, often depending
on the state of the economy. Former California Governor Pete Wilson rode
to office in 1994 on a plan to exclude illegal immigrants from state
With this plan, “there's no bill [setting out the legislative details];
that's one of the really curious things,” Martin said. He added that
administration officials may be working behind the scenes with Congress
in order to get a bill going before the election, but by all appearances, “it's
not very seriously on the Bush agenda.”
Asked about the future of immigration by an audience member, Martin
predicted that Americans will demand immigration controls for the next
several decades, but by then Mexican immigration may not be a big issue.
The birth rate is declining in Mexico, and if the country gets some lucky
economic breaks, there may be enough jobs to reduce immigration pressures.
He drew a parallel to the history of the European Union. It began with
free movement of goods and capital, and by the time the EU introduced
free movement of labor many years later, economic improvements in the
poorer countries of Europe had been so successful that few migrated.
• Reported by M. Wood