Immigration Reform: When A Trigger Isn't A Trigger

Kevin Glass

4/19/2013 9:03:00 AM - Kevin Glass

Border enforcement has long been a top priority for Republicans in Congress and conservatives across the country when it comes to immigration reform proposals. The Gang of Eight's plan has promoted its "enforcement-first" approach, but some Capitol Hill Republicansare taking a closer look at the enforcement provisions - and coming away with skepticism.

The first four major points of the Gang of Eight's immigration "outline" [pdf] concern border security and its priority over a path to legalization for illegal immigrants. Indeed, the outline says that "no immigrant in undocumented status may be adjusted" until parts of the border security provisions are completed.

Border security is paramount, according to the Gang of Eight. But is that actually true?

It's unclear. The immigration legislation places an incredible amount of authority and power in the Secretary of Homeland Security to form and implement border security plans. Moreover, it's unclear that any of the border security provisions must be completed before the path to legalization goes into effect for illegal immigrants. Indeed, a border security strategy merely has to be "commenced" by the Department of Homeland Security before illegal immigrants can apply for the new provisional legal status. It's entirely possible that the border security strategy will turn out to be unimplementable and unworkable while the path to legalization has already begun.

What the border security strategy entails is also unclear. The legislation merely calls upon the Secretary of Homeland Security to devise a "Comprehensive Southern Border Security Strategy" to be submitted to Congress that gives the Secretary the ability to set stationing and surveillance priorities for border agents. The legislation calls upon DHS to maintain a 90% apprehension rate on illegal border crossings - more on that later - and maintain "persistant surveillance." This latter term is not defined, and an aide on Capitol Hill told Townhall that they've never seen this term used in immigration legislation before.

There are provisions for additional border fencing as well, but again, this is largely up to the Secretary of Homeland Security. The Secretary is charged with identifying where fencing should be deployed. Success of the border fencing provision will be achieved merely at the Secretary's report that they're "commencing" with the border fence.

If the border enforcement provisions fail to live up to the standards set, the path to legalization for the 11 million illegal immigrants will have already been set in motion and the Department of Homeland Security will be required to set up a "Southern Border Security Commission" to make recommendations to the President on what policies should be implemented to achieve satisfactory border security.

In other words, the border security policies that are supposed to be prerequisites for the path to legalization could all fail with no effect on the process of legalizing the immigrants who have applied for legal status. And in the event that all of those fail, we'll get another presidential "commission" to make recommendations on how to fix the border. And we all know how those work out.

It could very well be the case that this is the best that border enforcement advocates can do. Securing the border is hard, after all. The public perception that the efficacy of border enforcement mechanisms is a prerequisite to the pathway to legalization, however, is not completely accurate. It's useful for the Gang of Eight to portray it that way, but conservatives on the Hill have been and will continue to be concerned.

For more on the triggers question, see AJ Delgado's breakdown at Mediaite.