A way forward on immigration

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The Senate's comprehensive immigration bill died an inevitable death. It was inevitable because it included so many provisions that unjustly rewarded illegal behavior. If the Senate hadn't killed the bill, the House certainly would have.

No matter how much proponents of the bill protested, it was impossible to dress the bill up as legislation that took the enforcement of immigration law seriously. It would have granted immediate amnesty to virtually all illegal aliens and would have jeopardized national security by legalizing aliens after only 24-hour background checks. It even made amnesty available to absconders-fugitives who had their day in immigration court, were ordered deported and ignored the order.

Laden with such provisions, the bill drew justified fire from just about anyone who believes in the concept of the rule of law.

Proponents of the dead Senate bill repeatedly insisted that the status quo is unacceptable, and then claimed that amnesty was the only alternative to the status quo. This was always a transparently ridiculous assertion. There is much that can be done to improve the enforcement of immigration laws that does not entail granting a massive amnesty.

Leaders of both parties in the House have suggested that they are open to the idea of moving smaller legislative initiatives forward. Here are three suggestions, each of which would significantly strengthen our immigration laws.

First, Congress should mandate that all employers use the Employment Eligibility Verification System (formerly known as the Basic Pilot Program). This is an Internet-based system that allows any employer to type in an employee's name, date of birth and identification number (Social Security number, alien employment authorization number, etc.) to find out whether the employee is authorized to work in the United States. It's fast too — in 92 percent of the cases, the employer receives an answer within two seconds. In most of the remaining cases, an answer comes back by the next day.

More than 16,000 employers are already using the (free) system voluntarily — because it is easier and more accurate to rely on the federal government to tell you if an employee is legal than it is to scrutinize documents yourself. Making the system mandatory would dramatically curtail the employment of unauthorized aliens. This was part of the "Sensenbrenner Bill" that the House passed in late 2005 (but the Senate never voted on). It should be revived.

Second, Congress must stop the proliferation of sanctuary cities — municipalities that refuse to inform the federal government when they arrest illegal aliens in the course of their law enforcement duties.

Terrorists know all about sanctuary cities and the concealment that such cities provide. The Fort Dix terrorists are a case in point. The group's three illegal aliens were pulled over a total of 19 times by local police for traffic violations. But because of sanctuary policies, they were never reported to Immigration and Customs Enforcement (ICE).

In 1996, Congress enacted a law prohibiting such sanctuary policies. However, Congress didn't imagine that cities would simply ignore federal law. But that is precisely what happened.

The solution to the problem is simple: Put some teeth into the law. Congress should enact a statute denying federal law enforcement funds to cities that violate this federal law. After all, why should our federal tax dollars go to cities that break the law and put us all at risk in the process? With federal money at stake, it wouldn't take long for the defiant cities to get back into line.

Third, there is another loophole that needs to be fixed. In 1996, Congress enacted a law that prohibited states from offering in-state tuition rates to illegal aliens unless all U.S. citizens attending college in the state also received in-state tuition.

Here again, numerous states brazenly ignored the law. Beginning (predictably) with California and Texas, open-borders advocates in ten states succeeded in passing legislation that gave in-state tuition rates to illegal aliens. Those states now discriminate against US citizens from out of state and against law-abiding foreign students.

This gift to illegal aliens comes at a time when millions of U.S. citizens have had to mortgage their future to attend college. In a world of scarce education resources, U.S. citizens should be first in line to receive taxpayer subsidies — not aliens who violate our immigration laws. Moreover, access to in-state tuition rates is worth more than $10,000 a year at most state universities — which is an undeniable incentive for illegal aliens to stay in the country.

To solve the problem, Congress should deny federal education funding to any state university that ignores existing federal law and offers in-state tuition rates to illegal aliens. Denial of access to the federal feeding trough always has a salient effect on behavior.

Each of these narrow statutory changes would significantly improve the enforcement of our immigration laws, which is what the American public overwhelmingly wants. Leaders in Congress claim to want the same thing. Let's see if they can walk the walk.

Kris W. Kobach, a law professor at the University of Missouri School of Law, served in the Justice Department and advised the attorney general on immigration law and border security.