Summary

As the 117th Congress comes to a close, the post-election scramble to cut closed-door deals before the House majority changes are underway. Two proposals in the Senate aim to please the more corporatist elements within the parties, particularly proponents of cheap labor and big business. 

The first proposal is a deal being put together by Sens. Thom Tillis (R-NC) and Kyrsten Sinema (I-AZ) that would provide a pathway to citizenship for two million so-called “Dreamers” who were the beneficiaries of President Obama’s unconstitutional executive amnesty through the Deferred Action for Childhood Arrivals (DACA) program. The second proposal is one sponsored by Sens. Mike Crapo (R-ID) and Michael Bennet (D-CO) designed to provide a pathway to citizenship for nearly one million migrant farmworkers through the H-2A visa program.

Both efforts come amid the backdrop of an ongoing–and escalating–border crisis wherein record numbers of illegal immigrant apprehensions have overwhelmed Customs and Border Protection (CBP) agents and flooded American communities with crime, chaos, and deadly fentanyl. Such poorly-conceived measures will only reward transnational criminal cartels based in Mexico and serve as a catalyst for continued societal unraveling. But perhaps most importantly, lame-duck deals like Tillis-Sinema and Crapo-Bennet further erode the public trust and underscore the growing chasm between elected officials who serve powerful elites at the expense of the working families and citizens from whom their legitimacy derives.

Legislative Analysis

Currently, no legislative text has been released of either proposal though some specific details have been leaked to the press. Below is the reported “framework” of the amnesty bills and the impact that such measures will have.

Tillis-Sinema DACA Proposal

The frenzied effort to provide amnesty for some two million DACA recipients is currently reported as being in a draft framework. The reported details include:

• A pathway to citizenship for nearly two million illegal immigrants referred to as “Dreamers” by both the former Obama administration and Biden administration. These are illegal immigrants who arrived in the U.S. illegally before June 15, 2007.
• A one-year extension of Title 42 public health removal authority.
• An undetermined amount of new funding for CBP to hire new agents and increase the pay for current agents. The funding has been reported to be anywhere between $25 to $40 billion.
• An unspecified “overhaul” of the asylum system allegedly designed to address existing loopholes.

As outlined in the Center for Renewing America’s FY2023 budget proposal, additional funding for CBP and border security remains one of many necessary preconditions for wresting control of the southern border from the grip of violent and deadly transnational drug cartels. However, proposals that begin with providing a pathway to citizenship for illegal immigrants who arrived in the United States before an arbitrary date are guaranteed to incentivize even greater future waves of illegal border crossings into the United States. 

Furthermore, additional funding for CBP without specified and substantive policy parameters under the Biden administration runs the significant risk of being used to purchase additional night flights to deposit an influx of illegal immigrants into communities and states that oppose the administration’s open border policies.

Lastly, it should be noted that the average age of a DACA recipient is 28 years old. While the program is often couched in terms of protecting children, the so-called Dreamer population is comprised of fully grown adults. 

Among the obvious flaws in the reported Tillis-Sinema framework are:

1. Permanent Amnesty for Temporary Security: The proposal to provide a pathway to citizenship for nearly two million illegal immigrants would confer lawful permanent residence (LPR) status to the “Dreamer” population. After five years, every LPR is eligible to apply for citizenship. In contrast, the funding for new CBP agents is unspecified, untargeted, and untethered to the removal policies needed to deter record levels of continued human and drug trafficking operations. The imposition of continued Title 42 authority lasts only for one year while catch-and-release remains intact, border barriers remain incomplete, and safe third-country protocols remain inactive.
2. Incentivized Future Illegal Activity: The effort to provide citizenship for millions of illegal immigrants predicated on the arbitrary date of their arrival guarantees an exacerbation of an already overwhelmed southern border. A congressional imprimatur on the carnage playing out due to our unsecured southern border signals to the world that one only need wait long enough after violating American sovereignty and immigration law to be granted the full benefits of U.S. citizenship. 
3. Empowering Cartels: The cartels maintain operational control of the U.S. southern border. An amnesty arrangement ensures the long-term viability of their continued human trafficking operations–which at one point last year was earning them $14 million per day. These operations work in tandem with the smuggling of heroin, fentanyl, and other deadly synthetic opioids that are taking the lives of tens of thousands of American citizens every year.

Crapo-Bennet H-2A Proposal

The attempt to provide amnesty to nearly one million immigrant farm workers who operate on temporary visas through the H-2A visa program is reportedly a “compromise” version of the House-passed Farm Workforce Modernization Act of 2021. That bill requires migrants with Certified Agriculture Worker (CAW) status to work in agriculture for an additional 4-8 years to qualify for a pathway to citizenship in what is tantamount to indentured servitude.

The Crapo-Bennet proposal reportedly keeps the pathway to citizenship in exchange for mandatory e-Verify for employers operating in the agricultural sector. Additionally, the proposal reportedly provides for a higher cap of three-year H-2A visas for year-round farm work compared to the House version.

Among the obvious flaws with such an arrangement:

1. Permanent Amnesty for Minimal Deterrence: In the wake of an amnesty for seasonal migrant agriculture workers, the requirement on agricultural businesses to utilize e-Verify loses its intended impact for deterring both employment fraud and violations of federal immigration law. Furthermore, the H-2A program has served as the lynchpin for mass amnesties in the past. Just as the Tillis-Sinema proposal will guarantee future waves of illegal immigration, so too will Crapo-Bennet guarantee future efforts to seize cheap foreign labor at the expense of the American worker.
2. Limitations on e-Verify: The proposed e-Verify requirement is only limited to agriculture employers and fails to capture the full scope of corporate America’s reliance on and desire for cheap migrant labor. Furthermore, e-Verify will not solve the H-2A program’s long history of fraud, which as far back as 1989 had an estimated 250,000 fraudulent applications. 
3. Visa Reform Failures: The guest worker visa programs are rife with fraud and abuse. The documented misuse of the H-1B program is so significant–and harmful to prospective American workers–that it should be scrapped altogether. The H-2A program relies on similar desires for cheap labor at the expense of the best interests of American citizens. The Crapo-Bennet proposal hides behind the implementation of an annual cap on H-2A visas as a “reform.” While a cap on the H-2A program is welcome, the Senate proposal purportedly seeks to increase the visa numbers above the House-passed bill. Furthermore, the cap is effectively rendered moot by the pathway to citizenship for one million workers.
4. Labor Force Woes: America is currently facing a crisis in labor force participation. The current rate is now 62.1 percent–the lowest percentage of working Americans since October of 1977. Instead of trying to import millions of illegal aliens as future voting citizens in exchange for higher profit margins, large agribusinesses and mid-sized farm operations should focus on innovative measures to employ American citizens. 

These plans come as the nation is overwhelmed with a record 2.4 million apprehensions in FY2022. An unprecedented 71,000 Americans died from fentanyl poisonings in 2021, an issue almost exclusively tied to the vast opioid-trafficking operations run by cartels across the border and into communities throughout the United States.

Critically, these attempted last-minute efforts to ram through amnesty deals prior to the start of a new Congress in January 2023 attempt to marry some half-hearted security measures to sweeten the deal for ostensibly conservative legislators who see themselves as border hawks. Setting aside the myriad shortcomings of these proposed measures, the Biden administration has shown a willful refusal to uphold existing immigration laws while repeatedly rolling back policy measures intended to deter continued illegal immigration.

There is simply no reason for staunch border security supporters to believe that unspecified new funding for CBP or an additional year of Title 42 removal authority will suddenly reinvigorate the Biden administration to end catch-and-release, restore safe third-country agreements, complete the border barrier, or recommit itself to Migrant Protection Protocols (MPP) that require migrants to remain in Mexico while their cases are adjudicated.

The bottom line is that amnesty efforts–regardless of the potential legislative and statutory security measures that are tagged onto them–are always destructive policies that elevate the political interests of non-citizens and powerful elites above the basic needs and interests of the American people. Amnesty is not only a fundamental moral failing on the part of elected lawmakers, but also the clearest possible evidence that a legislator has committed a dereliction of duty to the citizens they are supposed to represent.

Amnesty is never justifiable, much less amid a historic crisis that is currently devastating American communities and families.

Conclusion

The Senate’s 11th-hour lame-duck amnesty proposals are harmful policy efforts couched in the language of compromise, but firmly rooted in an approach that is fundamentally antagonistic toward the economic, cultural, societal, security, and political interests of working Americans and their families. Both proposals will exacerbate the border crisis, provide no lasting solutions for securing the border against malignant transnational cartels, and reward well-connected business interests with lawless measures intended to pad their profit margins.

The Senate should respect the will of the American people and reject both proposals.