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The Politics of Rapid Legal Change: Immigration Policy in the 1980s*

Published online by Cambridge University Press:  16 December 2008

Peter H. Schuck
Peter H. Schuck
Affiliation:
Yale University
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Extract

Conventional wisdom maintains that the enduring structures of American politics make rapid policy change unlikely. This proposition is confirmed by much political science. Our institutions are designed to bridle and domesticate reform impulses, dissipating the constant pressures for new political and social arrangements. The separation of powers establishes numerous veto points, making initiatives of any kind difficult. The political culture's firm commitment to broad participation and due process places a much higher value on consultation than on decisiveness or direction. Special interests tolerate only incremental changes. The major parties clothe themselves in the familiar as they move toward the political center and its embrace of the status quo. New ideas are of only marginal importance; their transformative power is routinely blunted by one of America's oldest ideas, pragmatism. Stability, not innovation, is the master theme of our politics.

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Articles
Information
Studies in American Political Development , Volume 6 , Issue 1 , Spring 1992 , pp. 37 - 92
Copyright
Copyright © Cambridge University Press 1992

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References

1. On the Progressive Era, see Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge: Cambridge University Press, 1982).Google Scholar On the New Deal, see Schlesinger, Arthur M. Jr, The Age of Roosevelt: The Crisis of the Old Order (Boston: Houghton Mifflin, 1957)Google Scholar, The Age of Roosevelt: The Coming of the New Deal (Boston: Houghton Mifflin, 1958), and The Age of Roosevelt: The Politics of Upheaval (Boston: Houghton Mifflin, 1960). On the Great Society, see Viorst, Milton, Fire in the Streets: America in the 1960s (New York: Simon and Schuster, 1979)Google Scholar. On the 1970s, see Johnson, Haynes B., In the Absence of Power: Governing America (New York: Viking Press, 1980)Google Scholar; and Califano, Joseph A. Jr, Governing America: An Insider's Report from the White House and the Cabinet (New York: Simon and Schuster, 1981)Google Scholar.

2. Most of Reagan's major legislative successes—tax reform and deregulation, for example—largely effectuated a return to earlier laissez-faire policies. It does not gainsay his considerable political achievement in winning these changes to point out that, unlike the many unprecedented Progressive and New Deal reforms, Reagan's were modeled on earlier policies.

3. Congress began limiting immigration in 1875, when it barred convicts and prostitutes. Idiots, lunatics, and paupers were added to the list in 1882, which was the same year that the first Chinese Exclusion Act was passed. The Gentlemen's Agreement of 1907 barred Japanese workers. Additional restrictions were added in the Immigration Act of 1917, enacted over President Wilson's veto. For a summary of this history, see Briggs, Vernon M. Jr, Immigration Policy and the American Labor Force (Baltimore: Johns Hopkins University Press, 1984), ch. 2Google Scholar.

4. The 1965 law enlarged the overall quota for Eastern Hemisphere countries slightly (from 154,000 to 170,000), but it also imposed a quota on Western Hemisphere countries (120,000) for the first time. This new quota followed hard on the heels of the termination of the Bracero program in 1964. Briggs, Immigration Policy, pp. 63–64.

5. On interest group liberalism, see Lowi, Theodore J., The End of Liberalism, The Second Republic of the United Slates. 2d ed. (New York: Norton, 1979).Google Scholar On incrementalism, see Lindblom, Charles E., “The Science of Muddling Through,” Public Administration Review 19 (1959): 79.Google Scholar On rational choice, see Riker, William H., The Theory of Political Coalitions (New Haven: Yale University Press, 1962).Google Scholar On the new institutionalism, see, e.g., March, James G. and Olsen, Johan P., Rediscovering Institutions: The Organizational Basis of Politics (New York: Free Press, 1989), emphasizing the rational choice account of institutions; and Rogers M. Smith, “Science, Non-Science, and Politics: On Turns to History in Political Science,” in The Historic Turn in the Human Sciences, ed. T. McDonald (Ann Arbor: University of Michigan Press, forthcoming), emphasizing the historical account of institutionsGoogle Scholar.

6. For an illuminating discussion on this point, see Smith, Rogers M., “If Politics Matters: Implications for a ‘New Institutionalism’ ” (Unpublished paper presented at the 1991 Annual Meeting of the American Political Science Association).Google Scholar

7. For an elegant, somewhat analogous effort to “test” competing explanatory paradigms—there, of the administrative process rather than of legislative politics—see Mashaw, Jerry, “Explaining Administrative Process: Normative, Positive, and Critical Stories of Legal Development,” Journal of Law, Economics & Organization 6 (1990): 267CrossRefGoogle Scholar.

8. For another, provocative example of rapid policy change in the last decade, see Melnick, R. Shep, “Separation of Powers and the Strategy of Rights: The Expansion of Special Education.” unpub. ms., 1990. Melnick asks, “How did advocates for the handicapped manage to pass legislation transforming special education without the advantages of presidential leadership, party support, lobbying by established interest groups, or a significant shift in public opinion?” (p. 5) Part of his answer, like part of mine, is court litigation. But he also points to a more unusual explanation not relevant to the immigration case: the expansive effects of both federalism and separation of powersGoogle Scholar.

9. On the concept of normal politics, see Ackerman, Bruce A., “The Storrs Lectures: Discovering the Constitution,” Yale Law Journal 93 (1984): 1013.CrossRefGoogle Scholar

10. The relative insignificance of the White House's political role in influencing immigration legislation during the 1980s is discussed infra, text accompanying note 59.

11. The Democrats have controlled the House and the Senate since the 1950s, except for 1981–87, when the Republicans controlled the Senate.

12. In this respect, political conditions here resembled those in Western Europe, where restrictionist attitudes of an even more resolute, virulent stripe prevailed—and continue to prevail—and where the countervailing forces favoring expansion are much weaker. See infra note 38.

13. See Simpson's, Senator supplemental statement in U. S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners (U. S. Government Printing Office, 1981) (hereinafter SCIRP Final Report), Appendix B, at p. 411Google Scholar.

14. Alan Simpson (an interested observer, to be sure) insisted that IRCA was “not nativist, not racist and not mean” (Pear, Robert, “Drive to Revamp Immigration Law is Gaining,” New York Times, 12 2, 1982, p. A28)Google Scholar. Buchanan's campaign did revive nativist and vaguely racist themes, but they seemed to attract only a limited, politically marginal audience.

15. See, e.g., Whitney, Craig R., “Big British Fight Shapes Up On Hong Kong Emigre Plan,” New York Times, 01 10, 1990, p. Al;Google ScholarKinzer, Stephen, “A Wave of Attacks on Foreigners Stirs Shock in Germany,” New York Times, 10 1, 1991, p. Al;Google ScholarRiding, Alan, “France Imposes a Tighter Political Refugee Policy,” New York Times, 02 14, 1991, p. All; and “Australia Cuts Immigration”, FAIR Immigration Report, August 1991 (citing Financial Times, May 1, 1991). See alsoGoogle ScholarRiding, Alan, “French Right Hits a Nerve With Immigration Plan,” New York Times, 11 24, 1991, p. 12.Google Scholar (although polls indicate only 15 to 17 percent of voters support the openly nativist National Front, over 30 percent share its views on immigration; Mitterand, President said France has reached “the threshold of tolerance” on immigration) “German Social Democrats Signal Openness to Limits on Refugees,” New York Times, 03 13, 1992, p. A10.Google Scholar (main opposition party to support constitutional change to restrict refugees).

16. See, e.g., Riker, William H., The Art of Political Manipulation (New Haven: Yale University Press, 1986).Google Scholar

17. A forthcoming article describes this as “a somewhat neglected topic in contemporary political science” (Hall, Peter A., “Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain,” in Comparative Politics [forthcoming, 1992Google Scholar]). For a review essay, see Levine, Charles M., “Where Policy Comes From: Ideas, Innovations, and Agenda Choices,” Public Administration Review 45 (1985): 255Google Scholar. The Reagan agenda, however, encouraged the study of ideas in politics, and some fine studies have resulted. See, e.g., Derthick, Martha and Quirk, Paul J., The Politics of Deregulation (Washington, D. C.: Brookings Institution, 1985) (deregulation);Google ScholarStockman, David A., The Triumph of Politics: How the Reagan Revolution Failed (New York: Harper & Row 1986)Google Scholar (supply-side economics); Katz-mann, Robert A., Institutional Disability: The Saga of Transportation Policy for the Disabled (Washington, D. C.: Brookings Institution, 1986Google Scholar) (right to integrative equality); and Roe, Mark J., “Political Elements in the Creation of a Mutual Fund Industry,” University of Pennsylvania Law Review 139 (1991): 1469Google Scholar (idea of fragmenting economic power drove legislation barring Wall Street control of industry). Robert Katzmann maintains that the Chicago School's ideas about competition drove the Federal Trade Commission's programmatic changes in antitrust policy during the 1980s (personal communication to author). For a pre-Reagan era example, see Steinfels, Peter, The Neoconservatives: The Men Who Are Changing America's Politics (New York: Simon and Schuster 1979Google Scholar) (neoconservatism). For an example from British politics, see Hall, “Policy Paradigms.”

18. Hall, Peter A., ed., The Political Power of Economic Ideas: Keynesianism Across Nations (Princeton, N. J.: Princeton University Press, 1989), pp. 4, 361–62.Google Scholar

19. See Loescher, Gil and Scanlan, John A., Calculated Kindness: Refugees and America's Half-Open Door, 1945 to the Present (New York: Free Press, 1986), p. 153;Google ScholarWasem, Ruth, Asylum and Temporary Protected Status Under U. S. Immigration Law, (Cong. Research Service, 06 14, 1991) p. 8,Google Scholar fig. 2. Although the data cited by Wasem cover only 1946–89, the level of refugee admissions prior to 1946 was lower than in the postwar period.

20. 1990 Statistical Yearbook of the Immigration and Naturalization Service, p. 97, chart G. (hereinafter cited as 1990 INS Yearbook). The 1977 figure dropped to fewer than 25,000.

21. See Fuchs, Lawrence H., “The Reactions of Black Americans to Immigration,” in Immigration Reconsidered: History, Sociology, and Politics, ed. Yans-McLaughlin, Virginia (New York: Oxford University Press, 1990)Google Scholar.

22. The original chairman, former Governor Reuben Askew, resigned shortly after the commission began to accept the position of U. S. Trade Representative.

23. For example, Hanson, Judi, UP1, 07 31, 1981Google Scholar.

24. This phrase, which would become popular to the point of triteness, appears to have been coined by Senator Alan Simpson in a SCIRP press conference, reported by Strout, Richard L., “U. S. Immigration Dilemma: Is There Too Much ‘Compassion,’ ” Christian Science Monitor, 12 9, 1980, p. 4Google Scholar. Simpson also used it in his separate statement appended to the SCIRP final report. See SCIRP Final Report, p. 413.

25. SCIRP Final Report, p. 411. For example, Simpson proposed an annual cap on legal admissions of 400,00 to 550,000, with the number to be lower until the flow of illegal aliens was substantially reduced. Even Simpson's higher figure (550,000) would have been lower than the legal immigration level (if refugee adjustments of status are included) in 1981, the year in which Simpson was writing.

26. The White House, however, remained uneasy about employer sanctions, which threatened to turn businesspeople into law enforcers. For the evolution of employer sanctions legislation, see 1982 Congressional Quarterly Almanac, Washington, D. C.: Congressional Quarterly Inc. p. 405; and 1983 Congressional Quarterly Almanac, p. 287.

27. In 1981, Huddleston had introduced S. 776, the Immigration and National Security Act of 1981, which would have established a cap of 350,000 on all legal immigration, including refugees and immediate relatives. His August, 1982, proposal was an amendment to S. 2222, the first Simpson-Mazzoli bill. Simpson opposed Huddleston's amendment and it was defeated by a vote of 35–63. The 1982 admissions figures can be found in 1989 INS Yearbook, p. 1, Table 1.

28. In this essay, I use the conventional “diversity” label to describe a set of provisions— enacted in IRCA, extended in 1988, and further extended and refined in the 1990 act—that give favored treatment to nationals from countries that were “underrepresented” or “disadvantaged” in the post-1965 immigrant flows. As discussed infra, text accompanying notes 91–98, these labels can be somewhat misleading.

29. Calls for the repeal of the employer sanctions, which began soon after IRCA was implemented, have grown more insistent as they have been bolstered by studies that purport to show that the sanctions have caused additional employment discrimination against His-panic and Asian workers. See, e.g., Clymer, Adam, “Bill Would Alter Immigration Law,” New York Times, 09 21, 1991, p. 7Google Scholar (a bipartisan coalition of senators, led by Hatch and Kennedy, introduce legislation to repeal sanctions). The proponents of repeal tend to be those who opposed sanctions initially. Even before the repeal legislation (S. 1734 and H. R. 3366) was introduced, the Black Leadership Forum denounced it. See FAIR Immigration Report, September 1991, p. 1.

30. Between IRCA and the 1990 act, Congress did pass the Anti-Drug Abuse Act of 1988, Pub. L. 100–690 (2nd sess.), which made it easier to deport aliens convicted of drug-related and other “aggravated felonies.” Although this statute was certainly restrictive in this sense, its narrow focus on criminal offenders makes it somewhat irrelevant to the more general pro-immigrant trend discussed in this essay.

31. Not counting the almost 900,000 amnestied aliens who adjusted to legal status in 1990 and swelled the number of legal admissions for that year, the United States admitted a total of 529,120 aliens: 231,680 nonquota immigrants (i. e., immediate relatives, special immigrants, etc.); 214,550 under the family preferences; 53,729 under the occupational preferences; 20,371 under the program for aliens from countries “adversely affected” by the 1965 act; and 8,790 under the so-called diversity program. During the first year under the 1990 law, the total admissions will be approximately 700,000 consisting of 140,000 for employment-based immigrants, 40,000 diversity visas, and the remainder for family-based immigrants. Neither of these figures includes refugees and asylees who are admitted but not yet adjusted to the status of permanent resident. The target for refugee admissions in 1992, however, is 142,000, an increase of 11,000 over 1991, and the new law also authorizes 10,000 asylee adjustments each year, an increase of 5,000 over the number authorized under the old law (“Bush Opens the Door to 142,000 Refugees,” New York Times, October 11, 1991, p. A8).

32. See, Interpreter Releases 68 (August 30, 1991): 1116 (family unity provisions of the act); and Bishop, Katherine, “U. S. Policy on Salvadoran Immigrants is Attacked,” New York Times, 05 20, 1991, p. A10Google Scholar (temporary protected status provisions of the act). In late December, after the statutory deadline had expired, INS officials reported to Senator Simpson's staff that more than 180,000 Salvadorans had been granted this status. Interpreter Releases 69 (January 17, 1992): 88.

33. American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N. D. Cal. 1990).

34. The administration also extended this status to Somalis in September, 1991.

35. The most recent published analyses are in the collection of papers entitled The Paper Curtain: Employer Sanctions' Implementation, Impact, and Reform, ed. Fix, Michael (Santa Monica, Ca.: Rand Corp., 1991)Google Scholar. The editor summarizes these impact analyses as follows: “[T]hree years after enactment, the law had yet to bring about broad compliance or to stem significantly the tide of undocumented migration to the U. S.” (p. 21). See also Johnston, David, “Border Crossings Near Old Record; U. S. to Crack Down, ” New York Times 02 9, 1992, p. 1Google Scholar.

36. 1990 INS Yearbook, Table 1.

37. The vote was 89–8 in the Senate and 264–118 in the House. Some of the votes on recent immigration reform legislation were close. For example, IRCA passed the House by only 238–173, and the Refugee Act of 1980 passed the House by 207–192. The votes to override President Truman's veto of the McCarran-Walter Act of 1952 were 57–26 in the Senate and 278–113 in the House.

38. Another factor exacerbating the crisis was the growing hostility to refugees (and immigrants more generally) by other potential countries of second asylum, especially in Europe. Their hostility increased during the 1980s, contrary to the situation in the United States. See, e.g., Center for Immigration Studies, “Immigration to the U. K.: A Closing Door,” Scope (Fall-Winter 1990–1991): 7; Whitney, Craig R., “Big British Fight Shapes Up on Hong Kong Emigre Plan,” New York Times, 01 10, 1990, p. Al;Google ScholarRiding, Alan, “France Imposes a Tighter Political Refugee Policy”, New York Times, 02 14, 1991, p. A11;Google ScholarRiding, Alan, “France Sees Integration as Answer to View of Immigrants as Taking Over',” New York Times, 03 24, 1991, p. 3;Google ScholarBinder, David, “Flood of Foreigners Seeking Asylum Angers West Germans,” New York Times, 08 11, 1990, p. 3;Google ScholarSchmemann, Serge, “Germans Fear Becoming Eastern Europe's Keeper,” New York Times, 12 9, 1990, sec. 4 p. 1;Google ScholarKinzer, Stephen, “Swiss Voting Results Reflect Anti-Immigrant Mood,” New York Times, 10 27, 1991, p. 11;Google Scholar and Center for Immigration Studies, “Immigration in Sweden: Refugees on the Rise,” Scope (Summer 1991): 14 (describing 1989 law tightening asylum procedures); Cowell, Alan, “Attacks on Immigrants Raise Concern in Italy,” New York Times, 02 9, 1992, p. 21Google Scholar.

39. Loescher and Scanlan, Calculated Kindness.

40. Meissner, Doris, “Reflections on the U. S. Refugee Act of 1980,” in The New Asylum Seekers: Refugee Law in the 1980s ed. Martin, David A. (Dordrecht: Martinus Nijhoff Publishers, 1988), p. 61.Google Scholar

41. According to Lawrence Fuchs, “no major immigration legislation has ever passed the Congress…which was initiated primarily by the Executive branch…” , Fuchs, “The Corpse That Would Not Die: The Immigration Reform and Control Act of 1986,” Revue Europeenee des Migrations Internationales 6 (1990): 111, 114CrossRefGoogle ScholarPubMed.

42. Bureau of the Census demographers who consulted with the Select Commission placed the figure at somewhere between 3.5 and 6 million, a more defensible figure that the major media began to use. (Fuchs, “Corpse,” p. 66 and source there cited).

43. Miller, Harris N., “ ‘The Right Thing to Do’: A History of Simpson-Mazzoli,” in Clamor at the Gates: The New American Immigration, ed. Glazer, Nathan, (San Francisco: ICS, 1985) pp. 53–54Google Scholar.

44. In addition to public officials, certain special interests in the immigration area— labor, Asian-Americans, and Mexican-Americans—were represented directly Fuchs, “Corpse,” p. 115.

45. Fuchs, Lawrence, “Immigration Reform in 1911 and 1981: The Role of Select Com-missions,” Journal of American History 70 (1983): 58, 61–65Google Scholar.

46. Letter to author, November 4, 1991.

47. This is evident in the numerous invocations of the commission's recommendations and authority during the final debate on the 1990 act. Congressional Record, S17105–S17118 (October 26, 1990) 101st Cong., 2d Sess., Vol. 136, No. 149—Part 2; and H12358 (October 27, 1990) 101st Cong. 2d Sess., Vol. 136, No. 150.

48. The “odd couple” description comes from Lawrence Fuchs, who worked closely with both senators during this period both as executive director of the Hesburgh Commission and later as consultant (telephone conversation, June 12, 1991). Their collaboration was executed and extended through the friendship between their staff aides, Jerry Tinker and Richard Day (telephone conversation with Muzaffar Chishti, Director of Immigration Project, International Ladies' Garment Workers' Union, December 4, 1990).

49. Miller, “Right Thing,” p. 49.

50. Fuchs interview.

51. Fuchs, telephone interview, June 12, 1991. Simpson adverted to this problem in his supplemental statement to the SCIRP Final Report. There, in introducing the issue of ethnic patterns, he noted that “I am about to enter into a very sensitive area and there is some risk that what I will say may be misunderstood” (p. 414).

52. During Senator Kennedy's tenure as chairman of the full committee, he had abolished the subcommittee, preferring to handle immigration matters in the full committee.

53. Unlike Simpson, he had not served on the Hesburgh Commission and his views had not been shaped, as Simpson's had, by its deliberations.

54. Miller, “Right Thing,” p. 56. After 1986, control in the House would pass from Rodino and Mazzoli to newer members—Howard Berman, Bruce Morrison, Barney Frank, and Charles Schumer—all urban liberals with strong personal and constituent commitments to immigration expansion. All but Morrison were also instrumental in the final stages leading to the enactment of IRCA.

55. The discussion of Congress's treatment of immigration legislation between 1981 and 1984 is largely based upon Miller's account,Aristide R. Zolberg, “Reforming the Back Door: The Immigration Reform and Control Act of 1986 in Historical Perspective,” in Immigration Reconsidered, ed. Yans-McLaughlin p. 315, and various issues of Congressional Quarterly.

56. SCIRP Final Report, at II.B.l (pp. 61–69), II.C (pp. 72–81), and VIE (pp. 226–29).

57. Fuchs, “Corpse”, p. 116.

58. Among these issues were the need for an overall numerical cap on legal admissions, the number to be admitted each year, the timing of legalization, and the fifth preference (for siblings of U. S. citizens) (SCIRP Final Report, pp. 411–23).

59. Telephone interview with Richard Day, Counsel to Senator Simpson, November 15, 1991. According to Day, Simpson complained publicly about the White House's indifference, complaints that the White House may have wanted those in the business community who opposed Simpson's proposals to hear. In addition to Attorney General Smith, George Bush, then vice-president, offered to help Simpson gain access to the president if needed. The White House's passivity on immigration issues persisted, however, when Bush became presi-dent.

60. Personal interview, March 12, 1991.

61. SCIRP Final Report p. 3: “We recommend closing the back door to undocumented/illegal migration [and] opening the front door a little to accommodate legal immigration in the interests of this country.” See also p. 82; and “Notre Dame's President Offers Solution on Aliens,” New York Times, August 24, 1981, p. A12: quoting SCIRP Chairman Hesburgh: “In a word, we think the front door to America, the legal door, should be opened a bit wider and the back door, the illegal one, closed.”

62. “Congress Jump-starts a Corpse,” New York Times, October 12, 1986, p. A22 (editorial).

63. Pear, Robert, “President Signs Landmark Bill on Immigration,” New York Times, 11 7, 1986, p. A12Google Scholar.

64. The phrase is taken from Fuchs, “Corpse.”

65. The requirement that amnesty applicants have resided in the United States since 1982, however, was much more stringent than the residence requirements of most European amnesty programs, such as Italy's 1990 program which reached back only to December 31, 1989. See Martin, David A., “Of Immigration Laws, Families, and Apple Prices,” Virginia Law School Report, p. 23, 24 (Winter 1992);Google ScholarMeissner, Doris, Dimitri Papademetriou and David North, Legalization of Undocumented Aliens: Lessons from Other Countries (Carnegie Endowment for International Peace, 1986)Google Scholar.

66. Fuchs, “Corpse,” p. 124.

67. The Immigration Marriage Fraud Amendments, Pub. L. 99–639, were passed only four days later. While these provisions were undeniably severe and excessively rigid (the harshest of them would be amended in the Immigration Act of 1990), they were directed at a particular abuse—sham marriages designed to circumvent the immigration preference system—and do not denote a general animus against aliens.

68. See John Kingdon, “Ideas, Politics, and Public Policies (Paper presented at 1988 Annual Meeting of American Political Science Association, Washington, D. C. ).

69. See discussion infra, text accompanying notes 114–116.

70. Despite use of the term “business,” business interests in immigration policy were by no means monolithic. This point is discussed infra, text following note 77.

71. See Zolberg, “Reforming,” pp. 317–18. On the historical treatment of the Mexican border, see also Lopez, Gerald P., “Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy,” U. C. L. A. Law Review 28 (1981): 615Google Scholar.

72. Fuchs, ”Corpse,” p. 115.

73. On fraud in the agricultural worker legalization program, see Suro, Roberto, “False Migrant Claims: Fraud on a Huge Scale,” New York Times, 11 12, 1989, p. 1. Unions such as the ILGWU, which had many members who were undocumented, favored a more generous amnestyGoogle Scholar.

74. See, generally, Victor, Kirk, “Labor Pains,” National Journal 23 (1991): 1336.Google Scholar

75. Morrison interview.

76. Letter to author from Lawrence Fuchs, November 4, 1991.

77. In the areas of public education and health care, for example, business interests were in the vanguard of reform efforts. See, e.g., Chubb, John E. and Moe, Jerry M., Politics, Markets and America's Schools (Washington, D. C.: Brookings Institution, 1990), p. 13;Google ScholarDemkovich, Linda E., “Public and Private Pressures to Control Health Care Costs May be Paying Off,” National Journal 16 (1984): 2390Google Scholar.

78. In Simpson's view, the preference gave siblings an unwarranted advantage in the immigration competition, one that actually cut against family unification values by reducing family members in the old country (Day interview). The Hesburgh Commission had been divided on this politically delicate issue, with all of the elected officials except Simpson favoring retention of the fifth preference (Fuchs letter).

79. Congressional Quarterly Weekly Report, February 27, 1988, p. 518. The Hesburgh Com-mission did not favor any point system (Fuchs letter).

80. The Hesburgh Commission, over the strong objection of its chairman, had recom-mended such a provision (Fuchs letter).

81. Simpson's bill, however, would not have counted immediate relatives against skills-based or “independent” admissions.

82. Pub. L. 100–658.

83. As discussed supra note 30, the 1988 act was directed at a particular evil and does not really contradict the general pro-immigration thrust during the last half of the decade.

84. Morrison interview.

85. Telephone interview, August 27, 1991.

86. Ibid.

87. Indeed, as Simpson's Senate aide points out, he had sponsored employer sanctions, and the Chamber of Commerce opposed the final version of all three Simpson-Mazzoli bills (Letter to author from Richard Day and Carl Hampe, October 29, 1991 [hereinafter Day/Hampe letter]).

88. The current controversy over whether the Cubans, who have received relatively favored treatment since the early days of the Castro regime, should continue to enjoy it is an example. See, e.g., “The Stick Congress Gave Castro,” New York Times, August 15, 1991, p. A22 (editorial urging repeal of the Cuban Adjustment Act). Concerning the strikingly different treatment of Cubans and Haitians, see DePalma, Anthony, “For Haitians, Voyage to a Land of Inequality,” New York Times, 07 16, 1991, p. AlGoogle Scholar.

89. See, e.g., Uhlaner, Carole J., “Perceived Discrimination and Prejudice and the Coalition Prospects of Blacks, Latinos, and Asian Americans,” in Racial and Ethnic Politics in California, ed. Jackson, Bryan O. and Preston, Michael B. (Berkeley, Ca.: IGS Press, 1991), p. 339;Google Scholar and Henry, Charles and Mufioz, Carlos Jr, “Ideological and Interest Linkages in California Rainbow Politics,” in Jackson and Preston, Racial and Ethnic Politics, p. 323Google Scholar.

90. Today's newcomers include both high-naturalizing groups (Asians) and low-naturalizing groups (Hispanics). See Schuck, Peter H., “Membership in the Liberal Polity: The Devaluation of American Citizenship,” Georgetown Immigration Law Journal (1989) pp. 9–10.Google Scholar

91. See Pear, Robert, “Major Immigration Bill Is Sent to Bush,” New York Times, 10 29, 1990, p. B10, col. 4Google Scholar.

92. State Department Message no. A–178 (September 28, 1990), pp. 10–11. The fifth ranking country was Indonesia (8 percent). All other countries had less than half as many visas as Indonesia (Saenz, Thomas, “The Development of Diversity Immigration Laws” [Unpublished manuscript, 05 28, 1991], p. 8 n. 27 [on file with author])Google Scholar.

93. Ibid., p. 2. The next five countries were Pakistan (9 percent), Egypt (5 percent), Peru (5 percent), Trinidad and Tobago (4 percent), and Poland (3 percent).

94. See Reimers, David, “An Unintended Reform: The 1965 Immigration Act and Third World Immigration to the United States,” Journal of American Ethnic History 3 (1983): 9, 16Google Scholar.

95. An estimated 44 percent of the diversity visas will go to Europeans, a larger share than under the OP-1 program. Immigrants from Northern Ireland are also advantaged by a provision that treats that country as separate from Great Britain for purposes of the diversity program. (See Saenz, “Immigration Laws,” pp. 10–11).

96. The diversity provisions will benefit not only new immigrants from these groups but also a large number who came on nonimmigrant visas during the 1980s and remained illegally. See Pear, “Major Immigration Bill,”

97. To be sure, the diversity provisions will also benefit some immigrants from African and Asian nations, just as the earlier OP-1 (“Berman”) program had done.

98. Although President Bush vetoed the legislation and his veto was sustained in the Senate, he later implemented the protections through administrative action.

99. The idea of legislating separate immigration streams had been proposed earlier by the Select Commission in its Final Report (at II.B.l., p. Ill) and by Senator Simpson in his legislative proposals.

100. Letter.

101. Insiders sometimes called this the “Italian preference” because of the ardor with which Italian-Americans, so intensely committed to extended family, had used it to bring over their siblings in the past.

102. For a chronology of this reform, see Interpreter Releases 68 (March 18, 1991): 305–07.

103. Morrison interview.

104. Day/Hampe letter.

105. “Democrats for Vitality” Wall Street Journal, October 1, 1990, p. A14; “Stonewall Simpson,” October 12, 1990, p. A14; Michael J. Boskin letter to the Editor, October 16, 1990, p. A27; and Simpson letter to the Editor, October 18, 1990, p. A17.

106. Simpson apparently played little or no role in bringing the White House around. Day interview, January 7, 1992.

107. Simpson, following the much-discussed Workforce 2000 report, assumed that un-skilled domestic labor would be in surplus. He also believed that unskilled aliens would quickly abandon the jobs that had justified their green cards and move on to something better (Day/Hampe letter).

108. As Morrison recalls, “Simpson wanted to make me pay six times over for the Irish and the other diversity provisions, which provided quasi-amnesty for Irish, Poles, and others” (Morrison interview).

109. Day/Hampe letter. Senator Kennedy did not state his “bottom line,” presumably because the bill was obviously going to include higher overall admissions and more generous benefits for the Irish than he had ever believed possible.

110. Telephone interview with Jerry Tinker, Staff Director, Immigration and Refugee Affairs Subcommittee, Senate Judiciary Committee, January 28, 1992; telephone interview with Bonnie Maguire, legislative assistant, Subcommittee on Immigration, Refugees, and International Law, March 11, 1992.

111. “The Administration didn't need softening at this point—they wanted the bill” (Day/Hampe letter). According to the ILGWU lobbyist, the administration's desire for the bill reflected the fact that it had some other foreign policy fish to fry, including its fear (exploited by President Duarte) that El Salvador might fall to the rebels if it was deprived of the remittances from its nationals in the United States, and its desire to provide safe haven to Liberians, Kuwaitis, and Lebanese (Chishti interview).

112. Chishti interview. In May, 1991, when fewer Salvadorans than expected applied for TPS, Moakley helped pressure the INS into lowering the application fees and introduced new legislation that would extend the application period. The fees were lowered and a four-month extension (until October 31, 1991) was signed by the president in July, 1991, by which time over 100,000 applications had been received by the INS. (Interpreter Releases 68 [July 1991]: 790). This was still far below the 500,000 who had earlier been thought to be eligible (Interpreter Releases 68 [January 1991]: 97).

113. Congressional Record S17109 (October 26, 1990). 101st. Cong., 2d Sess., Vol 136, No. 149—Part 2.

114. Chishti interview.

115. See, generally, Fuchs. For a very recent example, see Roberts, Sam, “Reshaping of New York City Hits Black-Hispanic Alliance,” New York Times, 07 28, 1991, p. 1Google Scholar (on the City Council redistricting conflict).

116. Telephone interview with Richard Day, Counsel to Senator Simpson, October 25, 1991.

117. Simpson was also exasperated with some of the liberals in the House delegation, whom he felt were continually raising the stakes and altering their demands after he had struck a deal with them.

118. Id. For the IRCA precedent, see supra Part IV (“Political Entrepreneurship”).

119. Here, as in most earlier key votes on this legislation, the Democrats favored the bill much more consistently than the Republicans, and Northern Democrats did so more than Southern Democrats. Nevertheless, support for it cut broadly across partisan lines. See Congressional Quarterly, November 3, 1990, p. 3764.

120. See Kingdon, “Ideas, Politics”.

121. Ibid., pp. 5–6.

122. The theory about the political functions of ideas advanced in the following discussion borrows from Peter Hall (Political Power, chs. 1 and 14), who distinguishes the “economics-centered,” “state-centered,” and “coalition-centered” influences of ideas. I identify some additional functions that Hall fails to mention, and because I am interested in how ideas influenced immigration policy rather than fiscal policy (Hall's principal focus), my classification is somewhat different.

123. See Kelman, Steven, Making Public Policy: A Hopeful View of American Government (New York: Basic Books, 1987), chs. 10, 11Google Scholar.

124. For a comparison between the way in which Cubans and Haitians are treated under U. S. immigration laws, see supra note 88.

125. See, for example, Lewin, Tamar, “Study Points to Increase in Tolerance of Ethnicity,” New York Times, 01 8, 1992, p. A12Google Scholar (between 1964 and 1989 “social standing” of almost all groups increased, especially Asians and blacks).

126. Hall, Political Power, pp. 10–12.

127. See, e.g., Garment, Suzanne, Scandal: The Crisis of Mistrust in American Politics (New York: Times Books, 1991).Google Scholar (new ideas about relation between public and private morality). On measuring the rate and direction of legal change, see Priest, George L., “Measuring Legal Change,” Journal of Law, Economics & Organization 3 (1987): 193 (using ratio of parties' settlement demands and offers to measure legal change)Google Scholar.

128. Olmstead v. United States, 277 U. S. 438, 485 (1928) (dissenting opinion).

129. In summarizing the role of ideas on immigration politics, I have used the word “elites” advisedly. Most ordinary Americans revere the nation's immigrant past and admire individual immigrants whom they know, but they do not favor an expansionist immigration policy. This was true prior to the 1980s and it almost certainly remains true today. Individuals with high educational and professional status who participate actively in policy debates and are deeply influenced by intellectual currents are different. Elite public opinion in the 1980s, as articulated by liberal and conservative editorialists alike, strongly endorsed pro-immigration reforms, and their views exerted considerable influence in Congress and the upper reaches of the executive branch. See Miller, “Right Thing,” pp. 57, 66; and Fuchs interview. For a review of editorial opinion on immigration before 1980, see Simon, Rita J., Public Opinion and the Immigrant: Print Media Coverage, 1880–1980 (Lexington, Mass.: Lexington Books 1985)Google Scholar.

130. The section that follows draws heavily on the analysis in Schuck, Peter H., “The Transformation of Immigration Law,” Columbia Law Review 84 (1984): 1;Google Scholar and Schuck, Peter H., “The Emerging Political Consensus on Immigration Law,” Georgetown Immigration Law Journal 5 (1991): 1,Google Scholar 9. See also Motomura, Hiroshi, “Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation,” 100 Yale Law Journal 545 (1990)Google Scholar.

131. For a statistical analysis of changing patterns of immigration adjudication in the appellate courts between 1979 and 1990, see Peter H. Schuck and Ted H. Wang, “Immigration in the Courts During the 1980s,” a study conducted for the Administrative Conference of the United States (1992). But c. f., Francis v. INS, 532 F. 2d. 268 (2d Cir. 1976) (holding INA 212 (c) unconstitutional as applied); Tapia-Acuna v. INS, 640 F.2d. 223 (9th Cir. 1981) (same); INS v. Chadha, 462 U. S. 919 (1983) (holding unconstitutional legislative veto in INA, 244).

132. For example, Haitian Refugee Center v. Smith, 676 F. 2d 1023 (5th Cir. 1982).

133. Plyler v. Doe, 457 U. S. 202 (1982).

134. For example, Abourevk v. Reagan, 785 F. 2d 1043 (D. C. Cir. 1986), afd without opinion, 484 U. S. 1 (1987).

135. For example, Landon v. Plasencia, 459 U. S. 21 (1982).

136. See Schuck, “Membership in the Liberal Polity.”

137. American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp. 1060 (CD. Cal. 1989). This decision was later reversed by the appellate court, but only after the Immigration Act of 1990 had repealed the provision in question. 1940 F. 2d 445 (9th Cir. 1991).

138. See sources cited by Hall, “Policy Paradigms” p. 22 n. 23.

139. For example, Simon, Julian L., The Economic Consequences of Immigration (Oxford, U. K.: B. Blackwell 1989);Google Scholar and , Idem, “More Immigration Can Cut the Deficit,” New York Times, 05 10, 1990, p. A33, col. 1. Although Simon favors essentially unlimited immigration, he (following some other economists) has also proposed implementing a more limited system by auctioning off visas. See discussion of this proposal in Schuck, “Emerging Political Consensus,” pp. 17–18Google Scholar.

140. See Morrison and Chisti interviews. See also, Fuchs letter, “I think that even pro-immigration policy makers such as Kennedy and Paul Simon don't believe that, whether or not Julian Simon does.”

141. See, Bach, Robert and Meissner, Doris, America's Labor Market in the 1990s: What Role Should Immigration Play? (Carnegie Endowment for International Peace, 06 1990), p. 15Google Scholar.

142. Borjas, George J., Friends or Strangers: The Impact of Immigrants on the U. S. Economy (New York: Basic Books, 1990), p. 222. See the discussion of these points in Schuck, “Emerging Political Consensus,” pp. 27–30Google Scholar.

143. In two respects, the share of labor-related visas is actually smaller. First, another 880,000 admissions that are not labor related (attributable to aliens adjusting status under the IRCA amnesty provisions) should be added to the denominator for 1990, which would reduce the share of labor-related visas to under 4 percent. 1990 INS Yearbook, p. 41. (On the other hand, the amnesty admissions will decline to zero within a few years.) Second, as with pre-1990 law, most of the labor-related visas are not really based on the possession labor skills but are allocated to the family members of visa-holding workers. See 1990 INS Yearbook Table 4.

144. The SCIRP staffs revision of the entire immigration statute, not included in the commission report, included changes in the exclusion provisions that did not carry the commission's imprimatur but were nonetheless useful in the later deliberations leading to the 1990 act. When the commission approved its final report, Simpson convinced the other commissioners that although he agreed that the traditional exclusions should be changed, the media would run headlines suggesting that the commission wanted to admit gays and communists, which would undermine the commission's recommendations. Fuchs letter.

145. See Loescher and Scanlan, Calculated Kindness.

146. 1989 INS Yearbook p. 98, Table f.

147. See discussion supra, text accompanying notes 91—102.

148. Saenz, “Development of Diversity.”

149. In sharp contrast to previous immigration legislation, which was not thought to require frequent or intensive review by Congress, the new law mandated a commission to report on immigration policy changes that might be needed in the future. Until the late 1970s, oversight of immigration administration (or much of anything else) by the judiciary committees, especially the Senate committee, was almost nonexistent. See Schuck, Peter H., ed. The Judiciary Committees: A Study of the House and Senate Judiciary Committees (New York: Grossman, 1975)Google Scholar.

150. For a very recent example, see Bouvier, Leon F., Peaceful Invasions: Immigration and Changing America (Lanham, Md.: University Press of America, 1992),Google Scholar which its publisher describes as a “liberal limitationist” making the case for “humane restrictionism” Scope, Spring 1991, p. 1.

151. Musing about whether the outcome might have been different if an eloquent restrictionist like Sam Ervin had been in the Senate to argue the case, or if FAIR had possessed the intellectual leadership of the Immigration Restriction League in the early part of the century, former SCIRP director Lawrence Fuchs recently observed: “One is struck by the fact that there was no strong intellectual movement for restriction” (Letter).

152. For an effort to solve this puzzle in a different context, see Hall, “Policy Paradigms”, pp. 7–8.

153. As Chou En-lai said when asked about the effects of the French Revolution, “It is too early to tell.” The possibility of a sharp political backlash against expansionist immigration policies certainly cannot be ruled out, as other liberal democracies are learning today. See Roger's, Rosemarie, Responses to Immigration: The Western European Host Countries and Then-Immigrants, (unpub. ms., 1991);Google ScholarWhitney, Craig R., “Europeans Look for Ways to Bar Door to Immigrants,” New York Times, 12 29, 1991, p. 1; see also sources cited supra note 38Google Scholar.