Florida Immigration Legislation: From “fixing stupid” to “dumb and dumber”

By John P. Horan

The writer examines the reasons why some legislation aimed at addressing the immigration issue is filled with bad ideas.

Congress’s efforts at national immigration reform remind me of the comic warning, “You can’t fix stupid.” Now some states, including Florida, are trying to address the problem, and their efforts might well be categorized as “dumb and dumber.”

A “nation of immigrants” should be able to pass sensible laws that secure our borders and allow a reasonable flow of needed labor. However, decades of immigration policies that have not met our nation’s security and labor needs appear too much to overcome, especially when the issue is fueled by the inflammatory rhetoric of election-year politics.

There may be as many as 15 million undocumented persons in this country, many of whom are performing unskilled or lower-wage jobs. They did not appear here overnight. Many have been in the United States for years and have been allowed to stay through a combination of neglect, inertia and perceived necessity. The economy has been at full employment for a number of years. The inexorable forces of supply and demand know no borders. So the workers came and many stayed. And our nation appears clueless about what to do with them, or how to prevent more of them from coming.

American history tells us that immigrants have always been willing to work at lower-paying jobs. In recent decades, changes occurred. The proportion of European immigrants decreased. For decades the government has been granting disproportionate numbers of visas to engineers, health care workers, physicists, doctors and technicians, instead of granting visas to immigrants needed for lower-wage jobs.

The U.S. now participates in a global economy where goods and services can be produced almost everywhere, so many of those blue-collar jobs moved overseas. But the demand for blue-collar labor continued and it was met by a flood of illegal workers.

The construction industry operates in the wake of what these forces have wrought. Consistently, the construction industry accounts for approximately 10% of the nation’s gross domestic product and is one of the top three employers. Nonetheless, despite continued efforts to promote workforce recruitment, career technical education, higher-education outreach and professional development training, there remains a drastic shortage of workers in the industry at every level, both skilled and unskilled.

Immigrants have comprised a substantive portion of the workforce that was needed to build our modern nation. Immigration laws and policies allowed for the workers that were needed. That has changed.

Current immigration law provides construction companies the ability to bring in workers to perform unskilled tasks in non-agricultural industries through the H-2B visa program. Unfortunately, annually there are less than 75,000 of these visas available and the workers allowed to enter the U.S. via this program may only stay for less than one year. Nonetheless, the program is utilized to its full capacity. For example, in 2005, the annual cap for H-2B visas was exhausted on January 4, meaning that no more applications for those workers were accepted for the remainder of that calendar year.

In the early part of the twentieth century, these “illegal” immigrants would have been granted entry visas to work under standards that then existed. We know them. They are our parents, our grandparents and our great-grandparents. They came and helped build a nation that split the atom, spliced the genome, walked on the moon and won two world wars and a “Cold War.” They helped build this great nation of immigrants. And they continue to come for a better life; but today they exist in the shadows. It is time for them to be brought into the light?

Last year, Congress failed to pass laws which secure the borders, and impose criminal penalties on illegal immigrants and those that assist them. Similarly, Congress failed to pass market demand legislation that would allow guest or temporary workers, or provide a credible identification system that would allow employers, as well as government officials, to electronically verify and track workers. It is likely that no legislative solution will be reached before the 2008 elections.

Undaunted, the Florida legislature has now entered the fray. Thirteen bills were introduced this year by various legislators that seek to address immigration in one form or another. These proposed measures have as their cornerstone the presumption that the business community should enforce the immigration laws. The centerpiece of these measures is the punishment of those who employ an “illegal” worker.  

This is the welfare state coming full circle. This is government saying that it cannot stop illegal immigrants from coming into the country; but what it can do is punish the business community for creating the jobs that attracted them in the first place. How nuts is that? Employers should not be the immigration police. Government needs to do its job. It should not delegate its responsibility to the business sector.

This is an important debate for a nation of immigrants. It is a serious debate for serious people. It should inspire us and appeal to our higher natures. Certainly, this is not the rhetoric we have heard as the debate has become emotionally charged and politically polarized.

Comprehensive legislation is needed to fix our outdated immigration policies. Our nation should expect its lawmakers to secure our borders and provide for a market-driven flow of legal immigrants that are needed to fill jobs for the American economy. Stupid need not be forever. Congress needs to fix this now; and the Florida legislature needs to stay out of it.

John P. Horan is a partner with Foley & Lardner LLP in Orlando. He is the founding chairman and a current member of the Construction Practice.