Chertoff’s Challenge to Obama

Immigration reform has a less than comprehensive look at the end of the Bush administration, as Homeland Security Secretary (DHS) Michael Chertoff made clear in his wrap-up speech on the "State of Immigration." Over the past three years Chertoff has intensified the post-Sept. 11 immigrant crackdown with the aim of simplifying immigration reform.

As the Bush administration draws to a close, Chertoff argued in his Oct. 23 speech that immigration reform can be a simple matter of hunting down illegal immigrants and contracting out foreign workers. Pointing to the recent DHS record of arrests, deportations, and an increasingly fortified southern border, Chertoff made the case that he has successfully set the Homeland Security apparatus to work enforcing immigration law "as it currently exists."

What remains for the next administration, he contended, is to continue down the enforcement path he has "laid out" and "continue the job of securing the borders and get it done." To complete the job of immigration reform, however, what’s needed is a new temporary work program that takes "the economic pressure that drives migration illegally into this country."

Chertoff also announced that the administration would again pursue the controversial "No Match" program that will notify employers when there is no match for Social Security numbers provided by their employees. If implemented, the No Match program would shut off all employment opportunities for illegal immigrants in the formal economy and would result in widespread firing of immigrant workers. Critics claim that many legal workers would be caught up in its broad and imprecise net as well.

No word about the centerpiece of the comprehensive reform proposals—legalization—that circulated in Congress last year. In his "State of Immigration" address, Chertoff aimed to redefine the term comprehensive reform to mean comprehensive enforcement, combined with a temporary workers program to meet the needs of business.

Heeding the complaints of the anti-immigration forces that the federal government was failing to enforce immigration law and to control the border, Chertoff has put the two Homeland Security immigration agencies—Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP)—on a strict law-and-order regimen.

"We have to assure the American public that we will enforce the law that is on the books," said Chertoff. "As a consequence, using existing laws and using existing tools as they may be, we have put our country on a path moving in the right direction, with respect to illegal migration."

Complaints about the abuses of the DHS immigrant crackdown abound. Deaths of immigrants in detention, the criminalization and mass incarceration of immigrants, and the raids that have spread fear through immigrant communities have sparked protests, lawsuits, and investigative exposés.

Some immigrant advocates say that a new administration should appoint a DHS secretary and ICE and CBP directors that reform detention practices, halt abusive raids, and end the criminalization of immigrants. Others say that immigration enforcement and border control of illegal immigration don’t even rightly belong in a department dedicated to homeland security, since immigrants—legal or illegal—don’t represent a threat to national security.

Chertoff, however, is counting on the idea that the new administration will follow the enforcement path he has blazed with a $15 billion immigration budget at the homeland security department. Meanwhile, immigration advocates are preparing to press their case for legalization, while immigration restrictionists are already organizing to defeat the type of new temporary workers program that Chertoff proposes.

Hard-Headed and Cold-Hearted

Chertoff is a conservative lawyer who rose in the Republican ranks to become the chief counterterrorism prosecutor under former Attorney General John Ashcroft. A prominent member of the right-wing Federalist Society, Chertoff was appointed by President Bush to lead DHS in 2005 to the general acclaim of the Republican Party rightists and the anti-immigration forces.

Michelle Malkin, a crusader against immigrant rights and author of Invasion: How America Welcomes Terrorists, Criminals, and Other Foreign Menaces to Our Shores and In Defense of Internment, enthusiastically greeted the appointment of Chertoff, writing: "A look at Chertoff’s strong, aggressive record and statements on homeland security shows that Chertoff supports the kind of hard-headed, threat-profiling measures and immigration enforcement opposed by the anti-profiling zealots."

Chertoff claimed that the crackdown he has directed is "turning the tide on illegal immigration. We developed a comprehensive multi-year strategy for dealing with the issue of illegal migration, we have implemented that strategy, and today we are seeing positive results of our actions."

Pointing to the declining number of undocumented immigrants (citing a recent study by the Pew Hispanic Center indicating a possible decline of 500,000 over the last year) and decreasing apprehensions at the border, Chertoff asserted: "We have reversed the trend of increasing illegal immigration into our country, which I think is something that would not have been thought possible just a few years ago."

While acknowledging that the deteriorating economy is likely responsible for slower illegal immigration, Chertoff points to the increasing effectiveness of the new enforcement and deterrence strategies of DHS.

He argues that the government should "lock in the progress that we have made." And "if we continue to keep the pace up over the next year or two, so that if economic conditions change down the road … deterrents will have really increased because we will have more fence, more border patrol, more technology, more enforcement, and hopefully a better way to bring workers in legally, so that when the economy gets better, we can bring people in through the open front door instead of sneaking over the back fence."

For Chertoff, illegal immigration is less about the "push" and "pull" factors referred to by immigration scholars but about "incentives" and "deterrents." Someone considering an illegal crossing must weigh the incentives and deterrents, he explained, and it’s the government’s job to ensure that the deterrents outweigh the incentives of jobs. "When the enforcement goes up, the deterrents increase," he said.

Remove Illegals, Contract Temporaries

For Chertoff, comprehensive immigration reform should include a three-pronged strategy of strict enforcement, border security, and immigrant worker programs.

Business groups, including the Chamber of Commerce, have objected to employee verification programs because they cost businesses time and money. Noting this opposition, Chertoff retorted: "In my experience, making money is not a sufficient justification for violating the law, since most people break the law in order to make money."

But he readily acknowledged that enforcement-only is not the answer. "I think it would be a lot easier if we said to businesses if we can work together to have a legal way to get the workers, that is a win-win. You get the workers, the workers get protected, and we are obeying the law." What’s needed, he said, is "comprehensive immigration reform that addresses the issue of temporary workers."

"It is our philosophy, it is my personal philosophy," said Chertoff, "that the answer to dealing with the problem of jobs that Americans do not seem to want to fill, is not to allow people to come in illegally, to break the law to fill them, but to create a regulated legal, visible, and secure path, to invite people in when we want to invite them in, under the terms and conditions that satisfy us as Americans, that we are comfortable with the security and the economic impact of that migration in that temporary work, and also using a path that is transparent and protects the workers themselves from the kind of exploitation some of them experience when they come in an illegal status."

No More Pathways to Citizenship

There is simplicity to Chertoff’s proposal missing from other comprehensive immigration reform proposals. Rather than address the complexities of a "pathway to citizenship" or "earned citizenship," Chertoff simply ignores the entire issue of possible citizenship for the 11-12 million illegal immigrants, focusing exclusively on temporary work programs as the legal path for new foreign workers.

In its simplicity—enforcement plus temporary worker program—Chertoff’s proposal for comprehensive reform lays out only two options for illegal immigrants—removal or temporary work permits.

This solution suddenly looked more possible when House Speaker Nancy Pelosi said that any solution would have to be bipartisan, which would mean sacrificing some of Democrats’ past priorities, such as giving illegal immigrants a path to citizenship.

"Maybe there never is a path to citizenship if you came here illegally," Pelosi said. "I would hope that there could be, but maybe there isn’t," she said.

If there is no pathway to citizenship, immigrants now in the country illegally can expect increasingly precarious lives. Only if they sign up for a temporary or guest worker program will illegal immigrants likely be permitted to stay in the country. But most illegal immigrants don’t work in industries, such as agriculture, that have traditionally been included in temporary worker programs.

Immigration restrictionists, while pleased that "pathway to citizenship" proposals seem to be losing support even among Democrats, are already preparing their forces to do battle against a broad new temporary workers program that would possibly give worker visas to current illegal immigrants and to new flows of foreign workers.

The Federation for American Immigration Reform, for example, has incorporated a response to a Chertoff-like proposal to expand temporary worker programs. In FAIR’s newly released Seven Principles of True Comprehensive Immigration Reform, one of its reform principles states: "Redefining illegal aliens as ‘guest-workers’ or anything else is just that: a redefinition that attempts to hide the fact it is an amnesty, not reform."

While acknowledging that there may be some need for temporary workers in the U.S. economy, FAIR aims to wage battle on the benchmarks Congress and the new administration set for determining the need for foreign workers. Rather than relying on employers or even the government to document a shortage of workers, FAIR says that "the need for guest workers must be determined by objective indicators that a shortage of workers exists, i.e., extreme wage inflation in a particular sector of the labor market."

In other words, unless businesses can show that they are paying exorbitant wages to attract labor, any plea for foreign workers should be rejected. Echoing the language of many unions and progressives, FAIR, in its principles for comprehensive immigration reform, declares: "Immigration policy should not be permitted to undermine opportunities for America’s poor and vulnerable citizens to improve their working conditions and wages."

The New "Business as Usual"

During his tenure as homeland security secretary, Chertoff has overseen a dramatic buildup in border security and immigration enforcement. As part of this crackdown on illegal immigrants, Chertoff has launched such new programs as Operation Community Shield (going after immigrant gang members), Operation Streamline (arresting and detaining illegal border crossers), and the Secure Border Initiative (which includes the 670-mile fence and the virtual fence).

Today, DHS deploys nearly 18,000 border patrol agents and has 30,000 prison beds dedicated to immigrants. In pursuing the immigrant crackdown, Chertoff has won broad bipartisan support for large annual increases in ICE and CBP budgets and for his initiatives that merge federal enforcement with local and state policing. What is more, many local and state governments have passed new laws aimed at driving unauthorized immigrants out of their communities.

Chertoff has set a well-coordinated and unremitting immigrant dragnet in motion. The law-and-order immigration apparatus directed by DHS is certainly demonstrating results. But with its emphasis on law enforcement and its disregard for justice, it is destroying millions of lives while splitting communities and families.

"Whether you like what we are doing or not," said Chertoff, "it would be hard to argue we were conducting business as usual in the last year and 18 months (since his appointment)."

Now that the infrastructure, funding, rationale, and strategy for a wide-ranging enforcement regime are in place, a new "business as usual" immigration policy is being passed on to the Obama administration. Despite declarations as a candidate that he would pursue comprehensive immigration reform in his first term, Obama will be hard put to back away from Chertoff’s strategy to enforce immigration law "as it currently exists."

Any retreat from Chertoff’s hard-line position on enforcement will be met with an upsurge of angry anti-immigration organizing. And any Chertoff-like proposal for an expanded temporary workers program will likely be opposed, as FAIR signals, as a de facto legalization initiative. As the economy stagnates, active support for immigrant rights and legalization is likely to decline, making yet more difficult for the Obama administration to summon the political will to fight back against the enforcement-first measures that Chertoff and the restrictionists have set in motion.

The Obama administration and the new Democratic Congress will soon face the challenge of addressing the immigration crisis. The path of least resistance may be to accept the "State of Immigration" as shaped and defined by Chertoff and the Republicans. But the bolder path is to stand on reason and principle in backing a new comprehensive reform bill, which meets valid citizen concerns about effective border control and sustainable immigration flows while also ensuring that immigrant workers and their families are treated with justice and fairness.



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