In all of the national debate over the immigration bill, no word has created more heat than “amnesty”. Both side obsess over it. One insists that the bill backed by the President and a majority of congressional Democrats is above all an “amnesty” bill, the other that—in the words of a recent Wall Street Journal editorial—this is the “amnesty” canard. Both sides thus seem to agree that the amnesty charge is, if true, lethal. But in thinking this both sides are hopelessly wrong, and so misconceive the real case against the bill.
To get a clearer sight of what is really happening, let’s move the discussion to another area of the law, and imagine for the moment a general amnesty for bank-robbers. What would that actually mean? Simply that all crimes of a certain kind committed up to the date of the amnesty will be forgiven and not prosecuted. Now let’s suppose we offer amnesty to all bank-robbers who will come forward to confess their crimes and have them entered into a record of those for which amnesty had been claimed and granted. But now a particular bank-robber, noticing how eager the authorities are to get him into the program, decides to bargain for more. “Can I keep my loot?” he says.
The correct answer naturally has to be: Don’t be ridiculous. “Amnesty” means we won’t prosecute you for the crimes you have committed up to now—not that you can profit from those crimes by keeping what you stole. Of course you have to give it back. But instead the authorities are so eager to have the robber take the deal that they say: Yes, we’ll let you keep what you stole. Sensing weakness, the robber pushes even harder. I want to go on doing what I have been doing, he says. Can you change the law so that for me and people like me it will be made legal and I can just go on doing it?
That may sound too absurd to merit further discussion, but bear with me. Instead of insisting that amnesty just means forgiveness of past crimes, not legalizing them, the authorities say, in effect: all right, we’ll change the law to create an exception for you so that you can go on behaving exactly as you have been doing.
By now the bank robber senses that the authorities will do anything to get him into the program, and he asks for a reward on top of everything else. And sure enough, he is given a handsome reward worth a great deal of money. But at the last minute, the authorities, becoming aware that what they are doing looks ridiculous, say sternly to him: but you have to agree to a fine of $5000. The robber, looking at the much greater value of what he has ripped off, what he can continue to rip off, and the reward, sensibly understands that the fine is a trivial face-saver and accepts the deal. At which point the robber naturally phones his friends to say: take up bank-robbing quick, you won’t believe the deal you’ll be offered—the government has gone crazy.
This ought to be just a risible fantasy The trouble is, it’s not fantasy at all: it’s what the immigration bill actually proposes. That bill says that we’ll not only forgive you your crimes to date and not prosecute you for them (the real meaning of amnesty). We’ll also let you profit from your crime by keeping what you have illegally taken (presence in the US), and we’ll amend the law so that it does not apply to you at all and so that you can go on doing what you have been doing (the Y visas) though the old law will still apply to others who have never committed the crime you committed, and on top of all that we’ll give you a valuable reward too (citizenship with all its many benefits).
The debate as to whether this an amnesty bill is both foolish and irrelevant. Foolish, because there can be no doubt that general forgiveness of a particular crime is an amnesty; irrelevant, because the distinguishing feature of this bill is not amnesty, but amnesty plus, and it is the plus that is really objectionable. I have nothing against an amnesty: there have been many situations in human history where it made sense to issue a mass forgiveness in order to start again with a clean slate but without damaging the concept of law. But this bill encourages law-breaking by letting law-breakers profit from their crimes, it rewards law-breaking by offering a highly valuable prize to those who have broken the law, and it accommodates law-breaking by building a special place into the law only for those who have broken it. Can a society of laws really afford to take so cavalier an attitude to its laws? What will become of us if we so recklessly encourage and reward violation of our laws? Well, we have already had a lesson if only we had been prepared to see it as that. In 1986 we gave this kind of amnesty plus to some 3 million people. The immediate result was a vastly greater number of people--at least 12 million--breaking that same law. And why not, when we gave them so much encouragement to do so? With this second and much larger amnesty plus, what numbers of law-breakers can we expect this time, after we have made our determination to encourage and reward the breaking of our laws even clearer? 30 million?
Proponents of the bill think they have a clinching argument: the 12 million are here. What are you going to do with them? But the real clincher is the other way round: the 12 million are indeed here. And so whatever we do, we must not make again the same mistake which produced that unwanted situation.
Is it so hard to find a way of dealing with the reality of those 12 million being here that does not encourage, accommodate, and reward law-breaking but instead gives people incentives to obey our laws? Of course not. I’ll give one suggestion; I am sure there will be others.
We could begin by announcing a guest worker program that responds to labor market conditions rather than to a specific target number. It would have several key provisions that work together as a system. First, permission to hire guest workers will be granted solely to employers, and only upon a showing of need. Second, any employer found guilty of knowingly employing illegal aliens forfeits the right to take part in the guest worker program for at least ten years. Third, any worker found in the US illegally permanently forfeits the right to take part in the guest worker program. Fourth, all recruiting for the guest worker program must take place in the foreign country. Fifth, workers illegally in the US on the date the bill is signed into law will be offered amnesty (in the strict sense) and free transportation to their home country, and will then be eligible to take part in the guest worker program in spite of their past violation of the immigration laws. But this amnesty must be specifically claimed, and it will expire in one month for those who have not claimed it.
A program like this has the incentives all working in the right direction: law-abiding behavior is rewarded, law-breaking punished. Would it work? Surely, employers will think long and hard about the severe consequences of breaking the law when there is a good legal alternative. And as they replace illegal workers with legal ones, that will likely result in added pressure (over and above rule three above) on illegals to return home and sign up quickly. The standard objections to guest worker programs will surely vanish if this one begins to solve the problem of the 12 million illegals, for those people already constitute a huge and out of control guest worker program.
Other incentives could be considered, always provided they encourage lawful rather than unlawful behavior. For example, after ten continuous years in the guest worker program, permanent residence and a path to citizenship five years later might be considered. But if the present immigration bill teaches us anything, it is that it is better to have a simple initial framework first—as long as it is one that rewards people for respecting our laws, not for breaking them.