If Congress passes comprehensive immigration reform, it will depend on the Obama administration to enforce the law. How might that work?
A glimpse of the future came recently, when the House Subcommittee on Border and Maritime Security held a little-noticed hearing titled “Measuring Outcomes to Understand the State of Border Security.”
Immigration reform depends on a secure border. Nearly every lawmaker pushing reform, and certainly every Republican, stresses that the border must be proved secure before millions of currently illegal immigrants can be placed on a path to citizenship.
But how do you measure border security? For years, the government estimated the number of miles of the border that were under “operational control” and came up with various ways to define what that meant.
Then the Department of Homeland Security threw out the concept of operational control, which Homeland Security Secretary Janet Napolitano called “archaic.” The administration promised to create something called the Border Condition Index, or BCI, which would be a “holistic” (and a far better) measure of border security.
Time passed, with no BCI. “Nearly three years later, the department has not produced this measure, so at this hearing, we will be asking for a status of the BCI, what measures it will take into account and when it might be ready,” subcommittee Chairwoman Rep. Candice Miller, a Republican, said before Wednesday's testimony. Getting BCI up and running is particularly important now, Miller added, because comprehensive immigration reform cannot happen without a reliable way to assess border security.
So imagine everyone's surprise when Mark Borkowski, a top Homeland Security technology official, told Miller that not only was BCI not ready, but that it won't measure border security and was never meant to.
“I don't believe that we intend, at least at this point, that the BCI would be a tool for the measurement that you're suggesting,” Borkowski told Miller. “The BCI is part of a set of information that advises us on where we are and, most importantly, what the trends are ... It is not our intent, at least not immediately, that it would be the measure you are talking about.”
Miller appeared stunned and practically begged Borkowski, along with two other Homeland Security officials who were testifying, to tell her what she wanted to hear. “I'm just trying to let this all digest” she said. “We're sort of sitting here, as a Congress ... At what point will you be able to give us something?”
She never got an answer.
Even Democrats who oppose tying immigration reform to border security realized they were being played. “I would say to the department, you've got to get in the game,” said a frustrated-sounding Rep. Sheila Jackson Lee. “At some point, we're going to have to have DHS work with us more concretely about the confidence of the security of the border.”
Rep. Ron Barber, the Democrat who replaced Gabrielle Giffords in Arizona, noted, “The Border Patrol rolled out last May a new strategy that didn't have goals, didn't have metrics, didn't have a process for evaluation”. That's not really a plan, is it?
Miller, the chairwoman, reminded the officials that the Department of Homeland Security could end up being the “stumbling block” to immigration reform. But the hearing ended with no hint that any answers might come soon.
A related issue: As reform supporters often point out, a large number of illegal immigrants -- more than 40 percent -- did not cross the border illegally. Rather, they came legally, with a visa, and then never left. Members of the Senate “Gang of Eight” are promising tough new measures to deal with so-called visa overstays.
But like the case of border security, Congress has passed law after law, going back to 1996, requiring the executive branch to crack down on overstays. The promised enforcement has never happened.
Among the measures: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996; the Immigration and Naturalization Service Data Management Improvement Act of 2000; the USA PATRIOT Act of 2001; the Enhanced Border Security and Visa Entry Reform Act of 2002; and the Intelligence Reform and Terrorism Prevention Act of 2004. All directed the executive branch to stop visa overstays, but the problem remains.
A look at the recent House hearing, as well as at the long-standing overstay problem, highlights a major obstacle to comprehensive immigration reform. The executive branch has the authority to enforce border and visa security. But these days, it appears the executive branch, particularly the Department of Homeland Security, doesn't want to do the job.
Why would passing a new comprehensive immigration reform measure change that?