Reagan's 1986 Amnesty and What the Immigration Reform Act Did

Ronald Reagan signed it two days after an election that went badly for his party. On November 6, 1986, the Republicans had just lost control of the Senate, and the president, in a signing statement, praised a law that his own allies would later spend decades disowning. The Immigration Reform and Control Act had taken years to pass and had nearly died more than once. It was the product of a bargain struck between two men who could hardly have been more different: Alan Simpson, a tall, wisecracking Republican senator from Wyoming, and Romano Mazzoli, a soft-spoken Democratic congressman from Louisville, Kentucky. The bargain was simple to state. People who had been living in the country without papers for years would be allowed to stay legally. In exchange, employers would be forbidden, for the first time in federal law, from knowingly hiring workers who were not authorised to work. The first half of that bargain was carried out. The second half was not. Almost every immigration fight since has been an argument about which half to blame.

In short: The 1986 law legalised about 2.7 million people and created the I-9 form and employer sanctions. Legalisation worked largely as designed; enforcement was weak from the start, partly by design. The lesson both parties drew from it explains why comprehensive reform has failed ever since.

The problem as it looked in 1981

By the late 1970s, unauthorised immigration had become a national issue. The end of the Bracero guest-worker program in 1964 and the new caps on immigration from the Western Hemisphere had closed legal routes for many Mexican workers who had long moved back and forth for seasonal jobs. They kept coming, now without papers, and employers kept hiring them.

In 1978 Congress created a commission to study the problem, chaired by the Reverend Theodore Hesburgh, the president of the University of Notre Dame. Its 1981 report laid out the framework that would become the 1986 law: close the back door to illegal immigration by penalising employers who hired unauthorised workers, and open the front door somewhat by legalising those already settled in the country. Simpson had served on the commission. He and Mazzoli introduced their first bill in 1982.

The Hesburgh commission's logic was that the two halves needed each other. Legalisation without enforcement would draw more unauthorised immigration. Enforcement without legalisation would mean either mass deportation, which the country would not support, or a permanent underclass of people living in the shadows.

Four years of near misses

The bill passed the Senate in 1982 and died in the House. It passed the Senate again in 1983 and the House in 1984, but the two versions could not be reconciled. Each round brought out a different coalition of opponents.

Growers in California and the Southwest feared losing their workforce and wanted a guest-worker program. Hispanic civil rights organisations feared employer sanctions would lead to discrimination against anyone who looked or sounded foreign, including citizens. Business groups opposed paperwork burdens. Some restrictionists opposed any legalisation on principle. Labour unions were divided, some supporting sanctions to protect wages and others worried about the effect on immigrant members.

In 1986 the bill was revived under new management in the House, with Representative Peter Rodino of New Jersey, chairman of the Judiciary Committee, and Mazzoli. The decisive deal came late, when Representative Charles Schumer of New York, then a young House member, helped broker a compromise with growers that created a special legalisation program for farm workers. With that piece in place, the bill passed both chambers in October and went to the president.

What the law did

IRCA had three main pillars.

The first was legalisation. People who had lived in the United States continuously and without authorisation since before January 1, 1982, could apply for temporary resident status, and later for permanent residence, which put them on a path to citizenship. They had to show they had no serious criminal record, learn some English and civics, and pay fees. A separate program, the Special Agricultural Workers program, offered legal status to people who had done a set amount of farm work during a recent twelve-month period.

About 2.7 million people received legal status through those two programs. The application process ran for a limited window, and community organisations, churches and unions spent months helping people gather the rent receipts, pay stubs and letters from employers they needed to prove years of residence in a life that had been lived, by necessity, off the books. Most of them were from Mexico. Many have since become citizens, and their children and grandchildren are part of the fabric of American life.

The second was employer sanctions. The law made it illegal, for the first time, to knowingly hire or continue to employ a person not authorised to work in the United States. It created the I-9 form, which every employer still uses: new workers show documents establishing their identity and eligibility, and the employer attests that the documents appear genuine. Employers who knowingly broke the law could face fines and, for a pattern of violations, criminal penalties.

The third was protection against discrimination. Because sanctions created an obvious risk that employers would simply avoid hiring anyone who seemed foreign, the law made it illegal to discriminate in hiring based on national origin or citizenship status, and created an office in the Justice Department to enforce that rule. This was added largely through the efforts of Representative Barney Frank of Massachusetts.

Why enforcement failed

The legalisation was messy but substantially worked. Sanctions did not, and the reasons were built into the law.

The I-9 system relied on paper documents, and employers were only required to accept documents that reasonably appeared genuine. A market in fake documents grew almost overnight. An employer who looked at a convincing fake had complied with the law. Proving that an employer knowingly hired an unauthorised worker was difficult, and the government's budget for workplace enforcement was small.

That was not entirely an accident. The design reflected the coalition that passed the bill. Business groups and growers fought for weak enforcement, and some civil rights advocates, worried about discrimination, did not press for a stronger verification system. There was no national identity database to check against; proposals for one were opposed by both civil libertarians on the left and small-government conservatives on the right.

A government accounting office review in 1990 found that the sanctions had caused a pattern of discrimination against people who appeared foreign, which validated the concern of the law's critics, even as the sanctions failed at their main purpose.

The result was that the jobs magnet that drew unauthorised immigrants did not switch off. Unauthorised immigration continued, and the population of people living in the country without legal status, which IRCA had shrunk, began growing again. By the mid-2000s it had reached an estimated eleven to twelve million people.

Enforcement priorities also shifted with each administration. Some years brought high-profile raids on factories and meatpacking plants, which arrested workers in large numbers while employers often faced little more than fines. Other years brought quieter audits of I-9 paperwork that led companies to fire workers whose documents did not check out. In both cases the people who bore the cost were mostly the workers rather than the companies that had hired them, which is the opposite of what the 1986 bargain promised. A law aimed at employers ended up landing mainly on employees.

The families the law split, and the fix

One flaw became visible within months. Legalisation applied to individuals who met the residence requirements, not to their families. A man who had arrived in 1980 might qualify while his wife, who came in 1983, did not, and their children might fall on either side of the line.

In 1987 the Reagan administration responded with a policy, sometimes called Family Fairness, that deferred deportation for some children of people legalised under IRCA. In 1990 the George H.W. Bush administration expanded it to cover spouses as well. Those were executive actions, taken without new legislation, to protect people Congress had left out. Decades later, when presidents of the other party used similar tools for other groups, critics called it lawlessness. The history suggests the practice has bipartisan roots.

The border buildup and the trap it set

IRCA also authorised more money for the Border Patrol, and over the following decade enforcement at the border grew steadily. The big shift came in the 1990s. In 1993 the Border Patrol in El Paso launched Operation Hold the Line, stationing agents in a dense line along the urban border. In 1994 Operation Gatekeeper did something similar around San Diego. Crossings in cities fell. Crossings in the deserts and mountains rose, and so did deaths from heat, cold and drowning.

Then, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which among many other changes created bars on re-entry: a person who had been in the country unlawfully for more than six months and then left could be barred from returning legally for three years, and a person who had been here unlawfully for more than a year faced a ten-year bar.

Put those together and something unexpected happened. For decades, many Mexican workers had moved in a circle: north for a season or a few years, home again, back north when they needed work. A harder border made each crossing more dangerous and expensive, and the re-entry bars meant that leaving could cost a person any chance of legal status for a decade. So people who might have gone home stayed. Families who would have remained in Mexico came north to join them. Enforcement intended to reduce the unauthorised population helped turn a circulating one into a settled one.

This is the part of the story both parties tend to skip. The growth in the unauthorised population after 1986 was not only the result of an amnesty encouraging more migration, nor only of weak workplace enforcement. It was also the result of border policies that trapped people inside the country. A serious reform has to reckon with all three.

The lesson each side took

Here is where 1986 stops being history and becomes the argument.

Restrictionists drew a clear lesson: amnesty came first and enforcement never did, so any future deal must deliver enforcement before legalisation. They point to the growth in unauthorised immigration after 1986 as proof that legalisation rewards breaking the law and encourages more of it. That view became dominant among Republicans in Congress, and it helped kill the comprehensive reform bills of 2006, 2007 and 2013. The phrase "amnesty" became a political weapon.

Immigrant advocates drew the opposite lesson. Legalisation, they argue, worked: millions of people came out of the shadows, earned more, paid more taxes, bought homes and raised families who are now citizens. Research on IRCA's legalised population has generally found that their wages and job mobility improved after they gained status. What failed was enforcement, and it failed because Congress and employers wanted it to. Demanding enforcement first, in their view, is a way to make sure legalisation never comes.

I think both sides are describing something real, and that the more useful lesson is about design. A deal that pairs legalisation with workplace enforcement only works if the enforcement mechanism actually functions, which means a reliable verification system, real penalties for employers who exploit unauthorised workers, and protections against discrimination that are enforced as seriously as the sanctions. The federal E-Verify system, which began as a pilot in the 1990s, is a partial answer; it is still voluntary for most private employers under federal law, though some states require it.

The people at the centre

Behind the policy debate are the 2.7 million people who received status, and their descendants. Farm workers in California's Central Valley who could finally visit family in Mexico without fearing they could not return. Restaurant workers in Chicago who could open their own places. Parents who could sign a lease in their own name. Many of them became citizens and voters; some ran for office.

There are also the people who did not qualify, because they arrived a few months too late or could not prove their residence. They stayed, raised children, and became part of the population that every reform attempt since has tried and failed to address.

One more fact is worth holding on to. The people legalised in 1986 and their families went on to become a significant part of the electorate in states such as California, Texas and Illinois. Whatever one thinks of the policy, it is a reminder that legal status changes not only individual lives but who gets a voice in the decisions that follow.

What you can do

• Ask your representatives the question 1986 raises: what would a fair, workable deal look like now? The representatives lookup gives you your members of Congress with their phone numbers, contact forms and latest votes.
• Help immigrants with their paperwork. Citizenship and status applications are complex and expensive; legal aid groups and immigrant-serving nonprofits, listed by state in the organizations directory, run clinics that rely on volunteers.
• Know the rules for workers. If you employ people, even a household helper, learn your obligations and your employees' rights; if you are a worker, know that labour laws on wages and safety protect you regardless of status.
• Follow the next round. Coverage of enforcement, courts and the new Congress collects on our immigration topic page, and any bipartisan immigration measures that pass will appear on the common ground page.