Today's Opinions, Tomorrow's Reality 

Probation for the Huddled Masses

By David G. Young

Washington, DC, January 29, 2013 --  

Denying immigrants government services threatens to destroy America's culture of equality.

When anger over uncontrolled illegal immigration boiled over in California two decades ago, citizens took lawmaking into their own hands. 1994's Proposition 187 denied public services to undocumented immigrants and spawned court battles that lasted for the much of the decade. Only when a federal court decision deemed the California law an unconstitutional infringement of the federal power to regulate immigration did the issue eventually fade away.1

15 years later, the same idea of denying public services to immigrants is back on the front burner, this time as part of a reform proposal by a group of eight bipartisan senators. Given that leaders in the House of Representatives and the president have announced plans to move forward with similar proposals, some kind of reform seems likely this year.

Few details have been released about a potential deal. The Senate's four page "Bipartisan Framework for Comprehensive Immigration Reform" proposes that the nation's undocumented immigrants pay back taxes and a fine and then be given "probationary legal status" which allow them to remain and work in the country but be prevented from "accessing federal public benefits." These probationary residents could not become permanent residents with access to benefits until "every individual who is already waiting in line for a green card" has received one.2

How long is that wait? A really long time. A 2011 analysis by the National Foundation for American Policy found that some people currently on the State Department green card list can expect to wait an incredible 70 years.3 If all the points of this "bipartisan framework" are codified into law, America's 11 million4 undocumented immigrants will be relegated to second-class status until everybody currently on the list gets their card, gives up, or dies waiting. For most "probationary" residents, this could be the rest of their lives.

What benefits would be denied to "probationary" residents? Clearly, it would include health insurance under Obama's Affordable Care Act, Medicare and Social Security. It could also include other non-federal services like state hospitals and public schools, if states like California decide to enact Proposition 187-like legislation compatible with the new federal law. Full details won't be known until legislation passes Congress. But since this is such a hot-button issue amongst Republicans, you can be sure that denying public services to immigrants will be part of the equation.

Yet plenty of undocumented immigrants are sure to take the deal. Their current status allows them no legal protection against abuse by their employers, no way to get a driver's license or get access to credit, and no way to apply for jobs by employers who want above-board legal employees. Agreeing to give up access to government benefits is a relatively small price to pay.

Denying government benefits is certainly satisfying to Republicans, many of whom are skeptical of immigrants' dedication to work over welfare. And it's even attractive to some of us in the pro-immigrant camp who like to see nativist Americans disarmed of the welfare club they commonly and unfairly use to knock immigrants.

But this is a terrible idea for America -- the country whose Statue of Liberty beckons the world's "huddled masses." What kind of a country will America be when most people get retirement checks and medical care for their tax dollars, but millions of others are denied access?

Fairness and equality under the law have long been key aspects of American culture and governance, and its history has largely been a march toward greater equality under the law for all of its people. Should the idea of a second set of rules for semi-permanent "probationary" residents gain a foothold in American culture, it could set a disturbing precedent that could lead to some very bad things.

Yes, the status quo is in many ways much worse for undocumented immigrants than the Senate proposal. But the difference is that this status quo, however unfair, is outside the law. By codifying a part of this unfairness into our legal system, America is changing a sin of omission to a deliberate misdeed.

Saving America's soul requires reforming its legal immigration system. Today's crazy multi-decade green card waits demonstrate that legal immigration is effectively impossible for many people. Only by drastically expanding immigration quotas can this change. If America does so, it will also allow the coming "probationary" underclass to become full-fledged American citizens. In so doing, it will hold true to its traditional values as a fair and equitable society that welcomes the huddled masses of the world.

Related Web Columns:

Who Will Do The Dirty Work?, May 12, 2012

Stupid and Impossible
21st Century Immigration Law
, April 27, 2010

Submitting to the Rising Tide, June 12, 2007

Meet the Parasites, April 4, 2006

Out of the Sand!
America's Failed Immigration Policy
, July 22, 2003

Crossing Borders With Uncrossed T's, April 2, 2002

Constitutional Rights: DENIED, December 11, 2001

Profoundly Evil
The Deadly Face of Modern Migration
, June 27, 2000

Lessons of the Conquistadors, April 4, 2000

Constitutional Apartheid
America's New Political Underclass
, March 9, 1999


1. Los Angeles Times, Proposition 187 Found Unconstitutional by Federal Judge, November 15, 1997

2. Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennett and Flake, Bipartisan Framework for Comprehensive Immigration Reform, January 28, 2013

3. National Foundation for American Policy, Waiting and More Waiting: America's Family and Employment-Based Immigration System, October 2011

4. Center for Immigration Studies, New DHS Estimates Confirm that Illegal Immigrant Population Stopped Declining Under Obama, March 26, 2012