There’s an old adage: “Fool me once, shame on you; fool me twice, shame on me.” But what do we call it when it is “fool me for the seventh time?”
Sen. Lindsey Graham (R-S.C.) apparently thinks it should be 7 times 70 times, characterizing anyone who objects to the latest bait and switch game on illegal immigrant amnesty as an obstructionist, an “outlier” getting in the way of a reasonable immigration reform effort. The old adage would instead suggest the president would be a fool to buy snake oil from this salesman.
Let’s review the 30-year history on the subject. In 1986, President Ronald Reagan was convinced to sign the Immigration Reform and Control Act, granting amnesty to about 2.7 million illegal immigrants, on the promise of stricter enforcement of our nation’s immigration laws on a going-forward basis. As Pulitzer-Prize winning author Jack Miles wrote in the June 1994 issue of The Atlantic:
“The mass legalization of then-illegal immigrants was traded for the promise that a new program of employer sanctions would destroy the incentive for further mass immigration.”
The amnesty came immediately, but the promised enforcement never materialized in any significant way. The result was that the amnesty proved to be an even bigger magnet for a new, expanded round of illegal immigration.
Dealing with the IRCA-induced new illegal immigration, Congress again offered up an amnesty in 1994, adding Section 245(i) “adjustments to status” to the Immigration and National Act, providing legal status to another half million people who had entered this country illegally or illegally overstayed their visas. During the window of time in which that amnesty was adopted, the U.S. Commission on Immigration Reform (also called the Jordan Commission) was acknowledging that immigration enforcement was lax and needed to be improved, both internally (via enhanced sanctions on employers who hired illegal immigrants) and at the border.
The Commission’s recommendations bore some fruit when Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act(IIRIRA) in 1996, mandating the hiring of additional border agents, increasing penalties for illegal entry, authorizing a section of border fence in San Diego, creating a pilot e-verify program for employment verification, and authorizing collaborative enforcement efforts with local law enforcement. But poor funding again undercut the effectiveness of those enforcement authorities.
The 245(i) amnesty, originally designed to last for only three years, was extended in 1997 before being allowed to expire, but then revived again in 2000 as part of the Legal Immigration Family Equity Act, or “LIFE” Act. The House Immigration subcommittee estimated that about 900,000 illegal immigrants applied for amnesty in the first year the 2000 amnesty was in effect.
Congress also passed the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) in 1997, which by the time the bill made it to final passage, offered amnesty to illegal immigrants from Nicaragua, El Salvador, Guatemala, Cuba, and eastern Europe who had lived in this country illegally since 1995, and also to their spouses and unmarried children. Estimates are that NACARA granted legal status to nearly another one million illegal immigrants. Again, the enhanced enforcement efforts being urged by the Jordan Commission never materialized in any significant way.
Not to be outdone, illegal immigrants from Haiti petitioned Congress for a similar amnesty of their own, and were granted it in 1998 by way of the Haitian Refugee Immigration Fairness Act (HRIFA), part of the must-pass omnibus appropriations bill to keep the government open that year. That one ultimately provided legal status to another 125,000 people who had entered this country illegally.
The terrorist attacks of September 11, 2001, slowed the amnesty demands down for a while, but by 2006, a serious push for a broad-scale amnesty had again gained traction in Congress.
That bill, introduced by then-Republican Sen. Arlen Specter of Pennsylvania and co-sponsored by, among others, Sens. Lindsey Graham and Ted Kennedy (D-Mass.), would have allowed 7 million people who had been in this country illegally for more than five years to become citizens, and another 3 million who had been in this country illegally for between 2 and 5 years to be allowed to stay in this country for another three years before being required to return to their home country and apply for citizenship from there.
Like the 1986 IRCA, it promised enhanced enforcement efforts, but the American people had already been down that road before, and reacted overwhelming against the bill, which though it passed the Senate, died after the House of Representatives was unwilling to go along.
Then came President Obama’s executive actions on DACA in 2012 and DAPA in 2014, both implemented by way of memos without statutory authority, purporting to be merely an exercise of “prosecutorial discretion” but that were in reality a wholesale suspension of the law.
Roughly 1.7 million people were eligible for DACA, and another 300,000 were added to the eligibility pool by amendments made two years later with the DAPA program. Roughly half that number applied, and the early approval rate for those who met the criteria stated in the “prosecutorial discretion” memo was nearly 100 percent, confirming that this was not an exercise in “discretion” but an attempt to change the terms of the law.
The DAPA program, also created by way of a Department of Homeland Security memo in 2014, would have added another 5 million illegal immigrants to the “deferred action” status that the president unilaterally conferred, had it not been blocked by the federal courts (up to an including an evenly-divided Supreme Court).
The current frenzy in Congress by elected representatives on both sides of the political aisle to “legalize” the DACA recipients, as well as initial court decisions blocking President Trump’s plans to repeal the DACA program, which rests on the same authority already shown to be illegal in the DAPA litigation, demonstrates just how pernicious these programs were to the rule of law.
Although the DACA memo and DACA application form were both quite explicit in stating that the program did not confer any legal status, that the “deferred action” provided under the program was temporary and could be revoked at any time, and that there could be no reliance interest created in remaining in the United States by virtue of being granted the deferred action, the arguments in Congress, and the initial lower court decisions, have claimed just the opposite.
Apparently, then, what was once given without legal authority has metastasized into a legal right, not just to remain in the country for the period of the illegally-granted deferred action, but permanently, and not just as legal residents, but as citizens. And yet again, all of this is being pushed by the likes of Lindsey Graham without any serious effort to enhance enforcement.
As Sen. Graham should have learned as a child, when Wimpy J. Wellington promises to pay next Tuesday for a hamburger today, the payment never comes. The right answer is — no more hamburgers until you pay for the one’s already provided. No more amnesties until, at the very least, you pay for the ones already provided. Anyone who urges the American people to do otherwise is treating us like damn fools.
Dr. John C. Eastman is the Henry Salvatori Professor of Law & Community Service, and former Dean, at Chapman University’s Fowler School of Law, and a Senior Fellow at the Claremont Institute.