Defeat in Victory

Published May 24, 2007

National Review Online

Don’t take it from me. Listen to the liberal San Francisco Chronicle: Kennedy is “among the craftiest lawmakers in the Senate. His aides insisted the family-based system will remain intact. For the next eight years, they said, the proposal would award 75 percent of new green cards to family members to clear the existing backlogs.”

So one of the key conservative victories in the grand immigration bargain is in reality a defeat. The advertised shift from family unification (currently 60 percent of legal immigration) to a merit-based point system actually disguises a 15-percent increase in family-based immigration. That gives disgruntled business lobbyists and immigration advocates eight long years to replace, or gut, a merit-based point system scheduled to kick in three presidencies from now. Clearly, the crafty Senator Kennedy is playing conservatives for a bunch of saps.

If Kennedy’s own aides haven’t convinced you, let’s hear from some conservatives. What about Heritage Foundation analyst Robert Rector, the policy-wonk who first brought merit-based immigration to the attention of Congress? Is Rector happy with the compromise supposedly built around his own idea? “I think anybody who takes that bargain is a fool,” says Rector. Given the eight year delay, “the change [to a merit based system] would never occur.”

Or how about Sen. Jeff Sessions, the Alabama Republican who seized upon Rector’s merit-system idea in 2006 and turned it into a personal crusade? Sessions dismisses the eight-year delay on the promised merit system as bogus “bait for conservatives.” “We all bit it, and it’s not there.”

But wait, aren’t powerful business lobbyists going to line up behind the shift from family unification to a merit-based point system? Surely high-tech businesses are thrilled at the prospect of a growing pool of educated and highly skilled English-speaking immigrants. Nope. Here’s Robert Hoffman, co-chair of Compete America, a coalition of high-tech companies: “…we have concluded that [the point system] is the wrong approach. Under the current system, you need an employer to sponsor you for a green card. Under the point system, you would not need an employer as a sponsor. An individual would get points for special skills, but those skills may not match the demand.”

Don’t even ask about low-skill employers. A merit-based point system may bring in the sort of immigrant most likely to assimilate, and least likely to impose a burden on the welfare system, but it would simultaneously reduce the number of workers likely to be employed in hotels, restaurants, nursing homes, hospitals, and the construction industry. In short, both high-tech and low-skill employers are determined to kill a merit-based point system (not even scheduled to kick in for eight more years).

In fact a coalition of business and immigrant groups have already killed off a similar reform. Back in 1995, a federal commission headed by liberal Democratic Congresswoman Barbara Jordan recommended paring back family-based immigration and moving toward a skill-based system. But when Jordan died a year later, business and immigrant groups united to block any changes.

So business and immigrant groups are dead-set against the shift from family unification to a point system. But don’t Democrats realize that it’s in their interest to throw conservatives a bone in exchange for support of amnesty, and a citizenship path, for the 12 million immigrants already here illegally? Oh yeah.

Is that why Speaker Pelosi has already said, “I have serious objection to the point system that is in the bill now, but perhaps that can be improved.” (I’ll bet.) Then there’s Hillary Clinton. Is the woman-who-would-be-president eager to cement the grand immigration bargain? Is Hillary bent on signaling Republicans that, if elected, she would uphold the bill’s central compromise? Yeah, right. Actually, Clinton is just now offering an amendment specifically designed to restore family-based immigration. Should Hillary become president, what do you suppose is going to happen to the point system?

So the point system won’t kick in for eight years. So family reunification will actually accelerate during that time. So key conservative proponents of the point system think the “compromise” bill is bogus. So both high- and low- tech business lobbyists, immigrant advocacy groups, the Speaker of the House, and the prospective Democratic presidential nominee are all out in front trying to kill the point system and restore extended-family reunification. Can’t we at least take some heart from the fact that all of those folks are squawking? Doesn’t the chorus of complaints actually prove that Republican negotiators got something important in exchange for amnesty?


The chorus of complaints is mostly coming from immigrant groups too panicked to know that the fix is already in. Senator Kennedy is in a bit of a pickle here. He can’t openly brag about the meaninglessness of the “concessions” he’s made on family reunification, because that would undercut his claim to have compromised in the first place. That’s why it was Kennedy’s aides who explained the “craftiness” of his empty compromise to the San Francisco Chronicle — and why Kennedy himself has been more circumspect.

San Francisco is a nexus of Hispanic and Asian immigration — and especially of Asian immigrant advocacy groups. These Asian advocacy groups are particularly worried about family reunification, because Asian extended families and clans find our current policies particularly congenial. (Extended-family-unification policies are a huge danger in the age of terror, I’ve argued in “Assimilation Studies” and “Assimilation Studies II“) Kennedy’s people were forced to be frank with a sophisticated paper from an immigration-wise town that was seriously probing the issue of extended-family unification. And as San Francisco’s representative in Washington, Speaker Pelosi has no doubt found it particularly difficult to maintain strategic silence in advance of her inevitable attempt to gut the point system and restore extended-family unification in the House. (For a good take on Kennedy’s strategic dilemma, and the complications caused by Pelosi’s talkative ways, see this piece by Jim Pinkerton.)

So the liberal knives are out for the immigration “compromise.” And there’s more. Kennedy’s got a failsafe mechanism that his aides haven’t mentioned yet. The proposed merit-based point system could be openly cut back in favor of a return to family unification, but there’s a smarter and more subtle way to kill the compromise. The point system can be subverted from within.

While the point totals allocated for employment-related criteria (47), education (28), knowledge of English (15), and family connections (10) have been revealed, no one has yet said how many points it takes to achieve a passing grade. If it takes 70 out of 100 points to pass, then the “new” (eight years from now!) system would clearly favor highly-educated immigrants. But if the “pass mark” is, say, only 30 points, then with 10 points allocated for family relationships, the supposed merit-based system would end up admitting pretty much the same folks who are already coming in under the family reunification policy. Clever, huh? It looks like a “merit-based” point system, but it’s actually the old family-reunification system in disguise.

Grassroots immigrant organizations are finding it tough to stem their members’ panic over a system that won’t even kick in for eight years, and will likely never see the light of day. The more sophisticated immigrant lobby groups, are holding their fire and waiting to turn the “merit-based” point system into a meaningless shell over time. And if the immigrant groups, Speaker Pelosi, and Hillary don’t succeed in gutting the point system in the current session, they have every likelihood of doing so within the next few years.

Remarkably, the “pass mark,” as well as other critical details of the point system — like whether or not the pass mark will “float” (i.e. adjust according to the qualifications of the available applicant-pool) — are still entirely unknown.

Let’s think about that. A low pass mark and a “no float” policy would quickly turn the so-called merit-based point system into a meaningless shell. So isn’t it interesting that senators are debating, proposing amendments, and taking positions for and against a bill, a central plank of which may already be entirely meaningless?

This highlights Kennedy’s craftiness — but also his dilemma. If Kennedy eventually announces a low pass mark and a no-float policy, his (already pretty obviously) bogus promise of reform will immediately be revealed as a hoax. On the other hand, if Kennedy sets a high pass mark and/or a floating pass mark policy, it will become very difficult to keep the Democrats on board with the bill. At best, this means the compromise will collapse if the details of the point system fully and finally expose Kennedy’s farce. Yet no matter what the final details of the point system turn out to be, the truth is that a serious merit-based system will never ultimately go into effect — not under this bill, and not under this correlation of national political forces.

The notion that any serious deal on family reunification and a merit-based immigration has been offered is a joke. I speak as someone who, in the past, and in contrast to many dyed-in-the-wool “restrictionists,” has been open to an authentic immigration compromise. I also speak as someone deeply concerned about the role of family-based chain migration in Europe’s immigration disaster.

Nothing would please me more than an actual shift away from an extended-family reunification policy to a merit-based point system. Precisely because I care about this issue, however, I am acutely aware of the fact that our supposed “victory” on the question of family unification and merit-based immigration is in fact hollow. The crafty senator is playing us all for fools. This bill is not the reform we’re looking for. What we need now instead is linguistic reform. Henceforth the tired old idiom “window dressing” ought to be replaced by a phrase for our age: “Kennedy drafted.”

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

Most Read

This field is for validation purposes and should be left unchanged.

Sign up to receive EPPC's biweekly e-newsletter of selected publications, news, and events.

Upcoming Event |

Roger Scruton: America


Your support impacts the debate on critical issues of public policy.

Donate today