The proper use of legislative history by judges interpreting statutes has long been debated among jurists and legal academics. But no one disputes the value of lawmakers themselves consulting legislative history, especially when they are wrestling with the very same issues addressed by a prior Congress.

The current debate over immigration reform presents an opportunity for Congress to learn from its past mistakes. Twenty years ago, President Reagan signed the Immigration Reform and Control Act of 1986, an ill-conceived amnesty program that promised--but never delivered--strict enforcement of our immigration laws. The immigration reform proposals that have thus far garnered the most support in the Senate have much in common with the 1986 amnesty. While I favor a second chance for hard-working illegal aliens currently within the United States, I cannot in good faith support any proposal that will repeat the failures of the 1986 amnesty.

The legislative history of the 1986 bill and its progeny--the floor debates, committee reports, and the like--reveal how similar the current immigration reform debate is to the one twenty years ago. Beginning in the early-1970s, Congress held scores of hearings and considered dozens of proposals to address the issue of illegal immigration. Like today, those Congresses debated how to best secure America's borders, enforce our immigration laws at the workplace, and bring out of the shadows millions of illegal immigrants living and working within this country. And, like today, the most difficult policy choice centered on what to do about the millions of illegal immigrants already inside the United States.

The 1986 amnesty bill emerged after nearly two decades of unsuccessful attempts to pass comprehensive immigration reform. Amnesty was the major sticking point that killed dozens of earlier reform proposals. Amnesty was first proposed in 1975 in the House of Representatives as an alternative to the arrest and deportation of hundreds of thousands--if not millions--of the illegal aliens that resided in the United States. The 1975 House bill also contained employer sanctions as a way of "removing the economic incentive which draws [illegal immigrants] to the United States as well as the incentive for employers to exploit this source of labor." In December 1976, President Ford's cabinet-level Domestic Council Committee on Illegal Aliens issued a report urging a comprehensive approach that included, among other things, employer sanctions, increased penalties against smugglers, and amnesty for illegal aliens already in the United States. The Carter Administration followed with a comprehensive package of its own, which also included amnesty for illegal aliens.

Unsatisfied with these initial reform proposals, Congress enacted legislation in 1978 creating a 16-member Select Commission on Immigration and Refugee Policy. The Select Commission unanimously recommended amnesty as part of a comprehensive reform package. The Select Commission, however, feared that amnesty unaccompanied by strict border and worksite enforcement would fail to solve the crisis. According to its chairman, Rev. Theodore Hesburgh, the Select Commission recommended amnesty "on one condition: that somehow the sieve that we call a border could be tightened up, that somehow we would bring our illegal immigration under control. Otherwise . . . legalization would be just another magnet to add to employment opportunity." According to the author and sponsor of the 1986 legislation, Sen. Alan Simpson, the bill contained a "one-time only legalization program." The "one-time only" promise was backed by a commitment to strong border security and, for the first time in our nation’s history, federal penalties for employers who hire illegal aliens. Proponents of legalization argued that strict enforcement of the immigration laws going forward would ensure that an amnesty would not beget more illegal entry.

The compromise struck in 1986 granted amnesty to those immigrants who illegally entered the United States prior to January 1, 1982, otherwise lacked a significant criminal record, demonstrated basic knowledge of U.S. citizenship, and paid an application fee. Studies placed the number of illegal immigrants in the United States in 1986 at between three and six million—estimates that included hundreds of thousands, if not millions, of illegal aliens who arrived between 1982 and 1986. We now know that almost three million illegal aliens adjusted to legal permanent resident status under the 1986 amnesty.

With twenty years of experience, we know now that the "one time" grant of amnesty led only to increased illegal immigration. The Pew Hispanic Center estimates that the current illegal population is around twelve million, and an additional 850,000 illegal aliens enter every year (approximately 2300 a day). What is most disconcerting is that approximately forty percent of illegal immigrants in the United States have arrived since 9/11--proving that the modest increases in border security in the past few years have been woefully inadequate.

We also know that the federal government has not lived up to its promise of strict enforcement. Efforts to enforce U.S. immigration laws, especially those at the workplace, have been frustrated by a lack of political will in Congress and the Executive. Between 1999 and 2004, the number of notices of intent to fine employers for improperly completing paperwork or knowingly hiring unauthorized workers decreased from 417 to three. The Department of Homeland Security apprehended over a million illegal aliens along the southern border last year, yet the Department has approximately 20,000 detention beds. The Border Patrol has only 11,268 agents to control 7000 miles of border; in contrast, New York City alone has 40,000 police officers.

Americans are tolerant, but they won’t be forgiving if this Congress repeats the mistakes of 1986. Congress must do more than simply promise more Border Patrol agents, detention beds, and a new employment verification system. It must also fund those enforcement initiatives, and future Congresses must have the political will to see their implementation through to completion.

Congress should also consider alternatives to amnesty. Senator Kyl and I introduced a bill that would grant all twelve million illegal aliens a second chance, but would not treat them better than legal immigrants who comply with the law. Illegal aliens who register with the government would immediately obtain work and travel authorization (and the legal protections that come with them) and would have a five-year period to depart. In order to avoid disruption of families and businesses, our bill would allow them to immediately re-enter legally. Our proposal neither rewards nor unduly punishes illegal aliens; instead, it places them on equal footing with other immigrants so that every individual has an equal opportunity to obtain a green card and citizenship.

Senator John Cornyn (R-TX) is the Chairman of the Senate Subcommittee on Immigration, Border Security, and Citizenship. Senator Cornyn and Senator Kyl have introduced immigration reform legislation in the Senate.

Preferred Citation: John Cornyn, Immigration Reform: Back to the Future, Yale L.J. (The Pocket Part), May 2006, http://yalelawjournal.org/forum/immigration-reform-back-to-the-future.