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A look deep inside the Gang of Eight bill — and how they’ll sell immigration reform to conservatives

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Politics,Beltway Confidential,Byron York,Politics Digest

Republican members of the Gang of Eight know they’ll have a tough time selling comprehensive immigration reform to a significant number of conservatives.  Of course some in the GOP are still panicked by last November’s election results and will be inclined to sign on to almost any deal.  But many of the more conservative Republican lawmakers on Capitol Hill will have to be convinced that the Gang’s proposal is an acceptable way to go.  It won’t be easy.

Starting this week, with the release of the bill, the Gang will launch an extensive public information campaign — lots of press releases, frequently asked questions, and fact sheets specifically addressing the concerns about reform that conservatives have raised in recent months.

The short version of their case: The Gang proposal will be tough, tough, tough; it will be based on stringent requirements that security measures be in place before many of its provisions take effect; it will avoid the moral danger of rewarding those who entered the country illegally; and it will take care to protect the U.S. economy.  And then there will be a final, mostly whispered, argument: If Congress doesn’t pass the Gang bill, Barack Obama might unilaterally legalize the millions of illegal immigrants in the country today in an adult version of his Dream Act decree, doing so without securing the border in an act that would be impossible for a future president to reverse.

In sum, what the Gang is planning is a sales job followed by a nightmare scenario.

First the toughness.  The bill will be based on a three-part enforcement scheme. First is a universal E-Verify system, which means that every business in America, even those that have one, two, or three employees, will be required to comply with the federal E-Verify law.  Every person hired in every business will have to produce either a passport or a driver’s license from a state that requires proof of citizenship for a driver’s license.

Second is an entry and exit system at all airports and seaports that will track visa holders to ensure that they do not overstay their allotted time in the country.

Third is border security, which the Gang will define as 100 percent “situational awareness” — that is, surveillance of the entire border — plus the ability to catch 90 percent of the people who try to cross it illegally.

The GOP Gang members know full well that the federal government has promised all those measures and more over the years, and the border is still not secure and businesses still hire illegal immigrants.  For example, Congress has passed multiple laws requiring entry-exit systems similar to what the Gang will propose, and the system has never been built.  So Gang members know that conservatives, at least, will be skeptical.

The answer the Gang hopes will reassure those skeptics is the concept of triggers.  They’ve set up three points at which the bill’s requirements will have to be met before the process can continue.

The first, and by far the weakest, trigger is for the legalization of the estimated 11 million immigrants in the country illegally.  In addition to requiring that immigrants pass a background check, be fingerprinted, pay taxes and a fine (which will be in the thousands of dollars), and prove they have been in the U.S. continuously at least since December 2011, the Gang bill will require that the Department of Homeland Security issue a “notice of commencement” confirming that it has prepared a plan for border security, including fencing and surveillance, that will meet the 100/90 percent requirements.  In addition, the Department will have to confirm that it has the funding to begin implementing the plan.  When that notice is made, then an illegal immigrant who has fulfilled the other requirements becomes what the bureaucracy will refer to as an RPI — a Restricted Provisional Immigrant.

Trigger number two will come five years after Homeland Security’s notice of commencement.  If the Department has not met the 100/90 percent requirement by then, the border commission that was created in the original bill — made up of the governors and attorneys general of the four states bordering Mexico — will no longer be simply an advisory panel but will become a policy-making panel, charged with creating and implementing a border security plan that must meet the 100/90 percent requirement.  The commission will have five more years to get the job done. How a commission of governors and state officials can be given the authority that constitutionally belongs to the Congress and the executive branch is not entirely clear, but that is what the bill will call for.

Once the 100/90 percent requirement is met, however it is done, then the Restricted Provisional Immigrants will be within sight, although a long sight, of a path to citizenship.  The Gang plan calls for RPI status to last six years.  After those six years, the RPI must re-apply for the same status, for an additional four years.  To have his RPI status renewed, he must pay an application fee and an additional fine, on top of the one he paid six years earlier when he first became an RPI.  He cannot have been convicted of any crime during those six years, or he will no longer be ineligible.  And he will have to prove that he has been gainfully employed during those six years, earning at least 125 percent of the federal poverty level.  (The figure will be higher for RPI’s with families to support.)

After an initial six-year term, and then four more years, the immigrant will have been in RPI status for ten years.  That is when the final trigger comes in. After that decade-long period, the Gang plan will say, if E-Verify has been fully implemented, and if an entry-exit system has been fully implemented, and if the border security plan has been implemented, then the RPI will be eligible to apply — not receive, but just to apply — for a green card.  The immigrant won’t be required to do so; he can remain an RPI for as long as he likes at that point.  But if he does apply for a green card, then he will face another multi-year wait for eventual citizenship.  The Gang stresses that green cards will be given out on a staggered basis, not all at one time, so no more than, say, two million immigrants will receive them in any single year.  (That number is still under negotiation.)  If any key part of the security requirements remain undone, the Gang says, then there will be no green cards.

In all, Gang members estimate the entire process, from illegal immigrant to citizen, could take at least 18, and as many as 22, years.  At the same time, the Gang hopes to have wiped out the backlog of people waiting to enter the United States legally.  Gang members want the RPI process to be slow in part to make sure that anyone who applied legally to enter the U.S. at roughly the same time as the new reform went into effect would be virtually guaranteed of receiving a green card before anyone who came here illegally.

During the long waiting period, the Gang stresses, the RPI will receive no need-based federal benefits, and specifically, no Obamacare coverage.  Since Congress specifically made Obamacare available to anyone who is in the country legally — not just citizens — the Gang believes it must repeal that portion of the Affordable Care Act in order to exempt newly-legalized immigrants with RPI status.  To do otherwise — to make the formerly illegal immigrants eligible for Obamacare — would bust the federal budget, the Gang says.

As complicated as all that is, there is still much, much more to the Gang proposal; immigration reform is an enormously complex subject.  But Gang members will argue that something has to be done, given the fact that so many illegal immigrants are already in the country.  The Gang’s goal was to come up with a plan that deals with those illegal immigrants while not encouraging further immigration or punishing those who are trying to come here legally.

Even if lawmakers agreed with the proposals, or amended them to their liking, there will remain the fundamental, unavoidable question of whether the Obama administration, or the next presidential administration, will enforce the law.  Gang members will try to convince skeptics that the provisions are iron-clad.  The skeptics will likely remain skeptical.  And that’s before considering the onslaught of lawsuits that pro-immigration activist groups will file to try to undo key provisions of the law.

But GOP gang members will have one final argument, one they will most likely use privately with fellow Republicans.  If the Gang plan goes down in defeat, the argument goes, Barack Obama will be a lame-duck president who has promised key Democratic constituencies that he will take action on immigration reform.  He has already used his executive power to unilaterally enact a version of the Dream Act.  If Congress denies him immigration reform, according to the argument, he will essentially do for the entire illegal immigrant population what the Dream Act did for young illegal immigrants: legalize them by declining to enforce current law.  With the stroke of Obama’s pen, millions of illegal immigrants will become legal.

And it could all happen, the Gang members will argue, without any of the strict enforcement measures — E-Verify, entry-exit, border security and more — that are in the Gang bill.  And Obama’s unilateral legalization would be virtually impossible for a future president, Republican or Democrat, to reverse.

In other words, after all the provisions and requirements and triggers, the ultimate Gang argument to conservatives and Republicans will be: Pass our bill, or face utter disaster.

The debate begins this week.

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Byron York

Chief Political Correspondent
The Washington Examiner