One of the most common bromides regurgitated by Republicans in defense of ‘amnesty first, enforcement later’ proposals is that we already have de facto amnesty with Obama not enforcing the laws.  This was always a dubious argument even before the release of the gang bill.  We should not use Obama’s malevolence as a baseline from which to craft public policy.  Instead of rewarding Obama for his insidious abuse of power by granting him the desired outcome, we should hammer him incessantly and fight for riders in appropriation bills to enforce the laws.

Moreover, although illegal immigrants are currently enjoying a liberal enforcement regime, they do not have a pathway to welfare and voting – something they will get with amnesty de jure.  Legalization and citizenship are a lot more than amnesty.

However, with the release of the BS…EOIMA (Border Security, Economic Opportunity and Immigration Modernization Act – S.744), there is now a more salient meaning to de facto amnesty.  The 844-page “comprehensive” bill, reminiscent of other notorious comprehensive legislation, was dropped at 2:25 AM, just two days before a scheduled hearing.  I just got through the first 100 pages of the bill, and in addition to the numerous issues that are emerging from the first reading, there is one overarching theme.  This bill will keep our system in a perpetual state of de facto amnesty for years to come, engender the need for future amnesties, and never ensure true enforcement.

As noted before, this bill fails to mandate any specific trigger for legalization.  After Janet Napolitano  merely submits a strategy for “achieving and maintaining effective control between the ports of entry in all high risk border sectors along the Southern border” within 6 months, everyone is eligible to apply for “Registered Provisional Immigrant” (RPI) legal status.  That’s it.  From there, the legal status will never practically be revoked.

The bill prescribes a 12-month open enrollment process for the RPI status; however, like much of the bill (reminiscent of Obamacare), it cedes a lot of power to the Secretary.  She will have the authority to extend the application period for another 18 months (page 69).  Now, we know from the conditions of the bill that almost every illegal in the country could be eligible for RPI status until proven otherwise.  In fact, even some aliens already deported can come back and apply for the status.  To that end, the bill requires DHS to provide all aliens, even those who are apprehended, “with a reasonable opportunity to file an application.”

Hence, this will ostensibly halt all deportations for 2.5 years.  Subject to the discretion of the DHS, which they will use quite liberally, they could completely shut down deportations because any illegal can potentially be here before 2012; anyone could potentially pay the taxes [they never earned enough to pay] and the $500 fine; anyone could potentially be an Ag worker who is eligible for full legal status in 5 years.  And anyone could potentially be eligible for the Dream Act, because, unlike previous iterations, this one does not mandate a maximum age for eligibility.

During this period of no deportations, many more people will come here illegally or overstay their visas.  What would be the deterrent?  Does anyone really believe that after the application process is over, they will suddenly make a 180 and deport those who didn’t come forward?  Also, given that the E-verify and watered-down visa tracking system don’t have to be implemented for 10 years, we will be dealing with many more illegals.

By the time the 10-year deadline comes due to grant the RPI illegals green cards and citizenship (unconditionally within 3 years), we will probably have more illegals than we have now.  As for the “trigger” of operational control over the border preceding the citizenship, Byron York takes apart the ambiguous language and shows how it is subject to the whims of DHS.  Moreover, failure to control the border will only trigger another commission, which will be tasked to provide even more recommendations and spend more money.  Furthermore, the RPI status is subject to renewal every 6 years.  So even if the border is not secure by year 10, the amnestied illegals will still be covered pursuant to their application on year 6.

This, of course, is just working off the legal language of the bill.  The reality of executive actions and political considerations never follow the language to the letter of the law.  That is certainly the case with immigration and border enforcement, as we are so painfully aware.  That’s why none of this can work until Obama starts enforcing the laws already on the books.  Until then, we will continue to play whack-a-mole, trying unsuccessfully to grant amnesty faster than new illegals enter the country.

Congressman Louie Gohmert noted during a subcommittee hearing last week that a staggering 34.9% of all federal prosecutions under this administration (that’s including all the drug-related prosecutions) were for people reentering the country after they were already deported.  This is not the time to go along with a plan that, even with good-will commitments, will not secure anything for 5-10 years while simultaneously suspending all interior enforcement.  It’s a recipe for chaos.  Implementation of this plan will be just as disastrous as implementation of Obamacare.

There are a number of things Congress can do to make our current legal immigration system benefit the country at large more than it does today.  But with regards to dealing with illegal immigration and border enforcement, the ball is in the administration’s court.  They must show us the enforcement now.  That needs to be the unifying rallying cry for all Republicans.  We must only verify, not trust, when it comes to enforcement.  Otherwise, we will be dealing with perennial de facto amnesty, whether it’s sanctioned by law or not.

Cross-posted at The Madison Project