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Professor William G. Ross
Cumberland Law School, Samford University
Contributing Editor, JURIST Forum

President Bush痴 proposal to grant at least temporary amnesty to countless illegal aliens may be a well-intentioned effort to grapple with a massive problem that defies any simple solution, but it suffers from significant legal, moral, and practical infirmities. The best that can be said for it is that it is much less objectionable than the far more sweeping amnesties advocated by immigration advocacy groups, many leading politicians of both parties, and virtually all of the Democratic presidential candidates. Although the President痴 proposal is limned in only general terms, with many important details left up to Congress, even the broad outlines of the plan are profoundly disturbing.

The most fundamental objection to the scheme is that it would reward the criminal activity of persons who have entered the nation illegally and those who have employed them, insofar as any illegal alien could obtain legal status for at least three years if he can prove that he has a job. Although Bush has denied that this is an 殿mnesty because the aliens must return home after the expiration of the three-year period or possible additional periods that Bush has invited Congress to consider, any type of program that gives illegal immigrants the legal right to remain in this country even temporarily and which excuses employers from having employed illegal aliens constitutes an amnesty for both the illegal aliens and the employers. Amnesty for the employers is even more troubling than the amnesty for the aliens. Most of the aliens came to this nation to obtain a better life for their families, while the employers all too often have shamelessly exploited these vulnerable people.

Although the Bush Administration correctly points out that the proposal will discourage lawlessness to the extent that aliens who avail themselves of the program will have to pay taxes and will no longer have an incentive to shirk other duties of citizenship (such as reporting crimes), these advantages are more than outweighed by the basic message that this proposal sends: aliens and employers can break the law with impunity and suffer no adverse consequences. This is insulting to the millions of immigrants who have entered this nation lawfully and the many persons in other nations who presently are patiently applying for lawful entry into the United States. It also insults the countless American businesses which have resisted the temptation to exploit cheap labor and cheat the federal government out of taxes. Moreover, the proposal seems likely to stimulate illegal immigration. If the federal government grants partial amnesty to this generation of illegal immigrants, why not suppose that it will grant some type of amnesty to the next? The danger that the plan will encourage illegal immigration is especially acute because it contains no provision for attempting to stem additional illegal immigration.

The proposal also could debilitate efforts to protect national security. It is no accident that the Bush Administration shelved similar plans in the wake of 9/11. With terrorism no less a threat today than then, there is no excuse for a plan that would encourage and reward illegal immigration. Have advocates of relaxed immigration controls forgotten that the 9/1l terrorists all resided within the United States? Although the Administration contends that the proposal would enhance national security since applicants would receive security checks, it is unlikely that terrorists would avail themselves of the program. Moreover, it is not clear that the already overburdened federal immigration system would have the resources needed to conduct effective security checks, especially since many illegal immigrants have forged identify documents. Indeed, the plan could hinder security efforts insofar as it would impose potentially huge new administrative burdens on the federal government, therefore diverting resources away from the fight against terrorism.

The proposal also is based upon the flawed premise that this nation is economically dependent upon the estimated eight to fourteen illegal immigrants. Although many of these persons surely must make admirable contributions to the commonweal, numerous studies convincingly demonstrate that illegal immigration on the whole has aggravated unemployment and depressed wages among United States citizens and legal immigrants. Encouragement of more illegal immigration can only exacerbate the problem.

Illegal immigration also has imposed staggering costs upon already reeling welfare, educational, and criminal justice institutions. Even if one disputes the various studies indicating that illegal aliens are disproportionately likely to commit crimes or require public financial assistance, one can hardly gainsay the fact that illegal aliens will consume scarce resources in an already over-populated nation.

The Bush Administration痴 proposal also appears to be based upon the fatalistic premise that the nation lacks the resources to expel masses of illegal aliens. In other words, it tacitly constitutes a first step toward surrender of border control, one of most fundamental aspects of national sovereignty. In fact, however, sorely underfunded federal authorities have valiantly fought to stave the recent tidal wave of illegal immigration and could function much more effectively if they received proper funding. If the United States can spend tens of billions of dollars to invade and occupy Iraq, a nation that arguably posed no security threat to this nation, it surely should be willing to spend at least as much to repel the eight to fourteen million illegal immigrants who have invaded and occupied the United States. Illegal immigrants collectively and in some instances individually may present far more of a threat to this nation痴 security and surely more of a threat to its welfare.

The Bush plan also is disturbing because it calls for increased legal immigration during a time of relatively high unemployment. The proposal to encourage so-called foreign 堵uest workers to apply for jobs that Americans presumably are unwilling to fill is hardly a formula for reducing unemployment. Even though the Administration says that citizens would have the first chance for jobs advertised through an electronic registry maintained by the Department of Labor, it is doubtful whether federal authorities could effectively monitor employers to make certain that they actually gave preferences to citizens. Various studies, including one by the General Accounting Office, indicate that existing guest worker programs have failed to provide citizens with job preferences, notwithstanding provisions to the contrary. Moreover, there is a danger that many of the new guest workers would overstay their visas, like so many other legal immigrants, thereby swelling the ranks of illegal immigrants. The recruitment of more guest workers also could encourage exploitation of labor since the prospect of competition from foreign workers might discourage employees from seeking higher wages and better working conditions.

Even if the economy needed more workers in order to grow, untrammeled economic growth is no blessing to the United States. The United States Census Bureau estimates that the nation痴 population will increase from 292 million to 420 million during the next half century. So sharp an increase in population at best creates significant environmental problems and at worst invites ecological catastrophe.

If the Bush Administration is seeking a solution to the problem of illegal immigration, there are many incremental alternatives to its new proposal. Only last month, for example, Bush signed Public Law 108-156, which extends and expands a pre-existing program that provided software to employers to obtain access to Security Security Administration and Homeland Security databases to determine whether job applicants have legal status.

Various pending bills would likewise ameliorate the problem of illegal immigration. For example:

  • H.R. 277, which would authorize the Secretary of Defense to assign military personnel to assist the Department of Homeland Security in protecting borders;

  • S. 1906 and H.R. 2671, which would permit state and local law enforcement agencies to detain illegal aliens during the course of their regular duties and provide funding for housing and processing illegal aliens;

  • H.R. 1567, which would amend the Nationality Act to deny citizenship at birth to children born in the United States to parents who are not citizens or legal resident aliens;

  • H.R. 1631, which would prevent illegal aliens from receiving social security benefits;

  • H.R. 3235, which would suspend 25 percent of annual federal transportation funding to states that issue driver痴 licenses to illegal aliens;

  • H.R. 687 and H.R. 502, which would prohibit the federal government from accepting identification cards issued by foreign governments.
Unfortunately, there is little evidence that these and other similar measures will become law. The bills to curb illegal immigration are pending along with others that would encourage illegal immigration. Several bills, for example, would permit illegal immigrants to attend state universities at in-state tuition rates, while denying these benefits to American citizens and legal immigrants.

Any form of amnesty for illegal immigrants defeats the humane purposes of the well-meaning persons who advocate these measures. Although no one can deny that immigration has been and will remain the nation痴 lifeblood and that immigrants have and will continue to immeasurably enrich this nation in every way, there is no excuse for rewarding law breakers and for encouraging a tide of illegal immigration that threatens the nation痴 security, its economy, and its ecology. Although Bush has commendably attempted to steer a middle course through this troublesome problem and has had the courage to address an issue that many politicians would prefer to ignore, his proposal is not what the nation needs.

William G. Ross is a professor at the Cumberland School of Law of Samford University.

January 8, 2004


JURIST Forum Contributing Editor William G. Ross is a professor at the Cumberland School of Law of Samford University. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979.