For the Future of Immigration Reform, Look to 1986

The old law, signed by President Reagan, is the basis of the new bill, even if reformers added a few bells and whistles to win over new converts.

By Fawn Johnson
May 27, 2013

President Reagan signs the Immigration Reform and Control Act of 1986, November 6, 1986. (Courtesy of the Ronald Reagan Library)

 

This committee is going down the same road that we did in 1986. I was there. I lived it,” said Sen. Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee and one of its longest-serving members. He was talking about two immigration bills—one approved by the committee this week and another signed into law nearly 30 years ago by President Reagan.

The rest of Grassley’s quote went like this: “We screwed up. We shouldn’t do it again.” He was articulating an often-used argument against the current immigration proposal by citing problems resulting from the 1986 measure, which legalized 3 million unauthorized immigrants and created the I-9 employment-verification system. Grassley is correct that the Senate’s immigration bill follows the same basic outline as the 1986 law. It would legalize 11 million undocumented immigrants and require employers to electronically verify that their workers are legal.

The likeness goes only so far. The new legislation is like the 1986 statute, only in Dolby and 3-D. Like the creators of the rebooted Star Trek movies, the new immigration bill’s authors are hoping to attract supporters who might not remember the original TV series. But Star Trek is still Star Trek. Anyone who hated the 1986 immigration legislation probably won’t like this version either.

The Senate “Gang of Eight” Republicans and Democrats who wrote the current bill went to great lengths to respond to the complaints about the 1986 law. Their efforts are mostly welcome but don’t always satisfy skeptics. The Senate bill would create a new work-visa program for low-skilled future immigrants, for example. The 1986 law didn’t have that feature, which meant that foreigners who wanted roofing or dish-washing jobs in the 1990s had to come to the U.S. illegally. They are part of the 11 million immigrants here without papers.

The bill’s authors hope the work-visa program will allow employers and foreign workers to come together legitimately instead of off the books, as they do now. Many Americans, however, don’t want foreign workers here at all, so the immigration bill barely gives out enough work visas to sate employers’ most minuscule demands for low-wage employees. Actual manual-labor job openings are “way above” the bill’s 20,000 visa allotment for the program’s first year, said David Aguilar, former commissioner of U.S. Customs and Border Protection.

“We’re going to have the same problem again. We’re going to create a black market,” predicted Rep. Raul Labrador, R-Idaho, a key player in the current immigration negotiations. Yet satisfying Labrador, who caters to business interests, would alienate organized labor, another key political force, which is hell-bent on making sure Americans get the first crack at even the dirtiest jobs. Reboots always have critics among the purists.

The Gang of Eight, anticipating this tension between business and labor, included a release valve in the new legislation for economists who want to see the country’s labor force respond to market needs. The measure calls for a “Bureau of Immigration and Labor Market Research” charged with analyzing labor shortages and recommending whether the work-visa cap should go up or down. That concept was fringe in 1986.

Free-market enthusiasts are thrilled at the idea of an economic-measurement system, but employers will still have to trust that it will give them the answers they want. “The only real way to measure the need is for employers to try to hire Americans and either succeed or fail. That will tell you. Is it big enough, or is it not big enough?” said ImmigrationWorks USA President Tamar Jacoby, who has lobbied extensively on behalf of employers to increase the bill’s work visas. Overall, she deems the proposed visa program “a pretty good product, except for the size.”

Border-security hawks, who tend to be the harshest critics of the 1986 law, also have a lot to like in the Senate bill. It would provide all kinds of high-tech goodies for U.S.-Mexico border surveillance, including drones and portable tracking devices, and would add 3,500 agents to the border staff of 21,000. That’s a huge leap from 1986, when just 3,000 agents were patrolling the 2,000-mile Southern border. “We literally operated with handheld flashlights. Fencing, infrastructure was nonexistent,” said Aguilar, who became a border agent in 1978.

Some conservatives want Congress to pass the border-security piece by itself, without the added baggage of legalization or work visas. Rep. Lamar Smith, R-Texas, says the Senate’s immigration bill is fatally flawed because it doesn’t include a hard deadline when the border should be secure. That repeats a problem from the last time, he argues, when lawmakers accepted a legalization program with the promise of bolstered border security that never came true.

But back then, border security wasn’t as such a big deal, according to Sen. John McCain, R-Ariz., one of the authors of today’s bill, who supported the 1986 legislation as a House member. “We said, ‘Look, we’ll get this border fixed; we won’t have to worry about it ever again.’ And it wasn’t until later on, when we had this flood of illegal immigrants come into our country—and many of them across my state’s border—that it became a very emotional issue. At the time, it wasn’t viewed as that huge.”

Star Trek wasn’t that huge either, initially. The latest movie has grossed $84 million domestically, and counting. Fans of the new immigration-reform legislation are hoping for similar success. “If you’re a critic of ’86, and you look closely at what this bill is, you would say, ‘Wow, they’ve really accounted for the mistakes and figured out correctives,’ ” said Frank Sharry, executive director of America’s Voice, which supports broad immigration reform. 

That’s convincing only if you buy the underlying premise of both efforts—that however they come here, immigrants benefit the country, be they human or Vulcan.

This article appears in the May 25, 2013, edition of National Journal as Rebooting the Franchise.