Reagan Signed the 1986 Amnesty and Got Only Half of the Bargain

Suppose you hire a contractor to rebuild your porch. Picture the arrangement, and I stress that this is a hypothetical, not a story about anybody. You agree to pay half up front, and he agrees to finish the job, put a lock on the door and fix the gutters. The first half of that bargain, your check, clears on schedule. The second half, the lock and the gutters, is "coming soon." Months pass. Then years. He is a decent fellow, he is busy, and every time you call he promises that the work is just about to begin. At what point do you stop calling it a contract and start calling it a gift?

That, in a sentence, is what millions of conservatives mean when they talk about 1986. The Immigration Reform and Control Act, signed by Ronald Reagan on November 6, 1986, was sold as a trade: legalization now, enforcement later. The legalization came. The enforcement came on paper, and then largely failed to arrive in practice. Let me lay out exactly what the law did, because the details are where the argument lives, and because the folks who say "Reagan did it, so we should do it again" and the folks who say "Reagan was fooled" are both skipping the fine print.

How we got to 1986

By the early 1980s the country had a problem that every honest observer could see. Federal law restricted who could enter, but the law did almost nothing about who could be hired. In fact, for decades it was written to avoid that. The Immigration and Nationality Act of 1952 contained what became known as the Texas Proviso, which said that employing an unlawfully present worker did not count as harboring him. An employer who put a person on the payroll committed no federal immigration offense. The law's whole weight fell on the worker, and none on the job that drew him.

Congress tried to fix that through a bill named for its sponsors, Senator Alan Simpson, a Republican from Wyoming, and Representative Romano Mazzoli, a Democrat from Kentucky. Simpson-Mazzoli passed one chamber or the other in earlier sessions and died before it could reach the president. It was a hard bill to pass because it tied together groups that normally pull in opposite directions: employers who wanted workers, unions who feared competition, civil-rights groups who feared discrimination against anyone who looked foreign, and restrictionists who did not want a reward for breaking the law. When it finally got through in 1986, it got through because it gave each of them something. That is how you build a bargain, and it is how you end up with one that is easier to sign than to keep.

What the law actually did

The act had four main parts. Learn them, and you can walk into any debate on the subject with the facts in hand.

One. General legalization. People who could prove they had lived in the United States unlawfully, continuously, since before January 1, 1982, could apply for temporary resident status and, later, for permanent residence. The cutoff date was the point. It was meant to be a one-time clean-up of a population that already had roots, not an open invitation. Anyone who arrived after the cutoff was supposed to be on the wrong side of the line forever.

Two. A special program for farm workers. The Special Agricultural Worker program covered people who had done at least 90 days of qualifying work in certain perishable crops in the year ending May 1, 1986. Growers had lobbied hard for it, and the program was easier to qualify for than the general one, which is part of why it later drew scrutiny for fraudulent claims. A companion program was designed to supply additional agricultural labor in later years if shortages appeared.

Three. Employer sanctions. For the first time, federal law made it unlawful to knowingly hire a person who was not authorized to work, and unlawful to continue employing such a person once you knew. Section 274A of the Immigration and Nationality Act holds the rule. Civil fines applied, with criminal penalties for employers who engaged in a pattern or practice of violations.

Four. The I-9. To make employer sanctions workable, the law required every employer, for every new hire, to check a document and to complete a form attesting that he had done so. The Employment Eligibility Verification form, the I-9, lists the documents that count: a passport, or a combination of an ID and a document such as a Social Security card. The employer's duty was to examine documents that appeared on their face to be genuine. He was not asked to be a forensic expert, and he was not given a way to confirm that a card was real. If you run a shop and you want to know the current form, see The Small-Business Owner's I-9 Hiring Checklist, Line by Line.

There was a fifth piece that rarely gets mentioned in the shouting. The law also added a ban on discrimination: employers were not to refuse to hire people on the basis of national origin or citizenship status, and an office in the Justice Department was created to handle such complaints. Congress knew the sanctions might make employers cautious about anyone who sounded foreign, and it wrote a guardrail. That guardrail is part of why employers have long felt squeezed between two penalties.

The law also authorized more money for border enforcement. And Reagan, in his farewell address three years later, spoke of America as a shining city with doors open to anyone with the will and heart to get here. That is the Reagan most people remember, and it was the Reagan who signed this bill.

The two halves

Count the bargain. By most published counts, roughly 2.7 million people ultimately received legal status through the two programs combined. Check the government's own immigration statistics for the exact total before you quote it to someone who will argue. That half of the deal was administered with vigor. There were deadlines, there was an application window, and offices were set up to process the claims. Legalization was a one-time event with a clear start and finish, and the government is good at events like that.

Enforcement was a different animal. It required an ongoing, boring, unglamorous effort over decades: audits of employers, fines that actually got collected, a way to tell whether the document the worker handed over was real. This is the half that failed, and it failed for identifiable reasons.

Reason one: the documents could be faked. The employer was only required to accept what looked genuine. Almost overnight, an industry sprang up supplying cards and numbers that looked genuine. A scheme in which the employer must check a document but cannot verify it will, in time, teach everybody that the document is the only thing that matters. A worker with a good-enough forgery was in the clear, and the employer who accepted it was in the clear too.

Reason two: not enough staff and not enough will. Auditing millions of employers is a huge task. The federal agency of the day had limited resources, competing priorities and a reluctance, shared by both parties, to hammer small businesses and farmers that donors and voters cared about.

Reason three: no quick way to check. For ten years, there was no electronic tool at all. The Commission on Immigration Reform, a panel chaired by Barbara Jordan, recommended a computerized verification system in the 1990s, and Congress authorized pilot programs in the 1996 law described in The 1996 Immigration Law Behind Most of Today's Border Fights. That pilot grew into E-Verify, which you can read about in E-Verify Explained, the Free Federal Check Most Employers Skip. It is still voluntary for most employers, and the fact that a free tool exists and most employers don't have to use it is the best summary of why the 1986 bargain stayed half-kept.

Reason four: the border side lagged too. The employer sanctions were meant to dry up the incentive to come. If they worked, fewer people would try to cross. Because they did not work well, the incentive stayed. And an incentive that stays will find a way through whatever physical barrier you have built, a point examined in What a Border Barrier Actually Does, and What Honest Critics Get Right.

The best defense of the 1986 deal

I owe you the strongest version of the argument for the law. Here it is.

One. A one-time legalization of long-resident people was a practical answer to a practical problem. Deporting millions of people who had worked and raised children here for years was not going to happen. The alternative to legalizing them was leaving them in a permanent shadow.

Two. It was a bipartisan compromise that Reagan, the most conservative president of the century, signed in good faith. If anyone could have made it work, he could.

Three. The law did contain the enforcement mechanism. The sanctions and the I-9 were not fantasy. They were in the statute. If the second half went unfulfilled, the failure belonged to later Congresses and administrations that did not fund or enforce what was already written.

Point three is true, and it matters. I will not tell you the 1986 law contained no enforcement, because it did. What I will tell you is that the enforcement it contained was weak by design and weaker in practice, and that voters who watched the legalization happen on time and the verification arrive years late drew the obvious conclusion.

What conservatives who remember 1986 are saying

When somebody on our side says "enforcement first," they are not announcing a hatred of immigrants. They are describing what they believe is the lesson of this one episode. It goes like this:

1. A government that promises legalization and enforcement in the same bill will deliver the first and defer the second, because the first has beneficiaries who show up at the door and the second has none.
2. Therefore the order matters. If enforcement is a precondition, with tools actually built and operating, the promise is credible. If it is a promise, it is not.
3. Therefore the tools should come first: a verification system that every employer uses, a way to track those who come and go on visas, and a border presence that works. The last two are discussed in The Visa Overstay Problem and the Exit Tracking Congress Ordered in 1996.

That reasoning is why later bills proposed triggers, conditions that had to be met before a legalization could begin. Reasonable people can argue whether triggers are workable. But the instinct behind them is the memory of 1986.

The fair complaint from the other side

A critic will answer: "You keep saying enforcement failed, but enforcement is a political choice. A president can order audits tomorrow. The reason it didn't happen is that Americans, including conservatives with businesses, did not want it."

That is partly right, and it should sting. The same employers who complain about illegal immigration are among those who benefit from an unregulated labor supply. A real enforcement regime means subjecting your own side's businesses to audits, and few politicians relish that. If conservatives want enforcement to be credible they have to be willing to enforce against friends. The party that is serious about it will say so out loud, and will pair it with a legal way for employers to fill genuine labor needs, so there is less temptation to cheat. The legal channels are mapped in H-1B, H-2A and H-2B, What Each Work Visa Does and Who Can Use It.

I'd add that the answer to "enforcement is a choice" is "yes, and that is why voters should demand it be made first." A law that depends on future goodwill is a law that depends on no one's promise.

The bigger lesson for the party

The 1986 law is worth remembering for a reason beyond immigration: it is a case study in the difference between a bill and a result. Legislators like bills. Voters live with results. A bill can say "the Secretary shall" a hundred times, and nothing happens if no one is funded to do the shall. When a Republican talks about immigration reform today, the question to ask is the simple one a contractor's customer would ask: what gets done first, who checks it, and what happens if it doesn't get done? The long history of the party's quarrels over that question runs through Four Decades of Republican Immigration Fights, From Reagan to the Gang of Eight.

The bottom line

• The Immigration Reform and Control Act, signed November 6, 1986, legalized people who had been here unlawfully since before January 1, 1982, created the farm-worker program, and made it unlawful to knowingly hire unauthorized workers.
• The legalization was carried out on schedule. The enforcement half, built on a paper I-9 that employers could not verify, was blunted by document fraud and thin follow-through.
• When conservatives say "enforcement first," they mean the order of operations: build the tools and use them before any new legalization takes effect.
• Be fair when you argue it. The 1986 law did contain enforcement, and Reagan signed it in good faith. The failure was in carrying it out.
• If you run a business, use the tools that exist, and read the I-9 instructions on the government's own site before you hire.