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Go as Far as You Can: How Negotiated Rulemaking in Immigration Benefits America: Part 2 of 2

by Gary Endelman

Gary Endelman Those who believe, as I do, that immigration is good for America have their principles right. Our challenge is to translate these principles into practice. If America is to move beyond paralysis and create a national immigration policy that works for all of us, we who most champion immigration must engage in the down and dirty work of building true alternatives to traditional rulemaking. Right now, there is such a balance of will between competing factions, the forces for and against positive change are so evenly balanced, that only a third way with absolute clarity of vision can chart a path forward towards sustainable compromise. Negotiated rulemaking is that third way. Absent this, precisely because any meaningful progress seems so remote, ideological combatants shrink back from assuming the very real risks that progress demands.

While the broad outlines of immigration policy are set by Congress, what this policy means each day in real life is most often a matter of what the implementing regulations say. How the agency puts the law into practice often has more to do with its ultimate impact, or lack of one, than the black letter law itself. The gap between what Congress intended and what the regulation mandates can often be the distance between rhetoric and reality. One need only recall with a dull thud the disparity between the concept of the labor condition application in the mind of Senator Spencer Abraham and what the DOL wage and hour folks did with the American Competitiveness in the 21st Century Act afterwards. Was DOL faithful to legislative intent? Can we not all remember the anguished remonstrance of Senator Abraham that his progeny was altogether unrecognizable in the thicket of DOL regulations? Regulations that are negotiated in a spirit of shared sacrifice can avoid such distortions. Doing that not only honors the Congress and promotes respect for the law itself, but also affords the agency access to talent, information, expertise and a perspective on the rule that it would otherwise not have or even know about. The regulated, in turn, learn early on what the regulators really care about and how they view the law. Negotiated rulemaking makes certain that those who know most about how to make the law come alive get the chance to be present at the creation of the proposed rule by serving on the advisory committee that gives birth to it. Transparency, fairness and balance are all infused into the regulatory process from the very beginning. The end result can only benefit the nation.

There is a larger strategic point here as well. When the agency publishes a notice of intent to engage in negotiated rulemaking, it appears not just in the Federal Register, which most ordinary mortals do not peruse with their cornflakes in the morning or snuggle up with for some quality bedtime reading at night. The notice of proposed negotiated rulemaking also appears in specialized or trade journals likely to actually be read by people who are interested in, and can contribute to, developing the rule in question. Negotiated rulemaking facilitates, indeed actually promotes, the politics of inclusion. It is a pristine example of administrative democracy in action. All Americans have been profoundly changed by the mass migration of the late 20th Century. They must be allowed to shape that which has shaped them. Whatever the substantive area of law, when people play a meaningful part in developing he rules by which they live, active and meaningful compliance need not be imposed by government edict or regulatory fiat. Rather, it arises naturally, almost spontaneously, forged out of the consensus on which the rule itself depends. Only through such informed and voluntary assent can America receive the immigration guidance it so badly needs and richly deserves.

Immigration policy is an example of the political culture in which such decisions are made. Under the traditional notion of rulemaking, the victory of one side is achieved through the defeat of the other. Winning cannot exist without losing. For this reason, it is hardly surprising that the vanquished do not accept the intellectual integrity or ethical legitimacy of the resulting rule. Rather, those outmaneuvered one day or by one rule normally deploy all of their resources in a concerted, often sustained, "emergency campaign" to frustrate, negate, and hopefully repeal the regulation that has been handed down. Negotiated rulemaking necessarily proceeds from an entirely different set of values, one in which a "win-win" culture requires all parties to assume ownership o, and internalize a deep sense of personal responsibility for, the end product. It is simply impossible for a national policy on immigration to emerge and survive from a rulemaking process in which ideological purity and strategic tunnel vision are prized above all else.

Race, education, workers' rights, and the environment, to name but a few disputes, are all highly flammable issues where negotiated rulemaking has worked. Why not immigration? Is this more controversial? Has traditional rulemaking been so much more effective here than elsewhere? If not, why cannot "reg neg" be applied in the immigration context? Perhaps the answer lies not in the unique complexity of immigration rules, but in what America perceives to be at stake. Everywhere that federal regulators have resorted to negotiated rulemaking, the national consequences of not having a sound or effective public policy were obvious to all. They have historically been much less obvious when it comes to immigration. So long as we instinctively focus on how immigration affects immigrants, we will not think long and hard on how the immigrants are affecting us. For negotiated rulemaking to gain a greater measure of immigration-related acceptance, Americans must shift from thinking of immigration as a form of international social work to a recognition that immigration is central to the health of our national economy and vital to the ability of that economy to dominate the global marketplace. Until we as a nation wake up to the fact that we have serious immigration problems and need serious procedures to solve them, negotiated rulemaking will remain what it is now, namely an intriguing illusion whose time has not yet come.

When we look at negotiated rulemaking from this vantage point, the question becomes not whether America can afford to make "reg neg" the basis of the way it regulates immigration, but whether it can afford not to. There are those who say that this cannot be done, that the differences over immigration are simply too wide and too deep for a consensus-driven process to play a meaningful role. Maybe so, but, in the evening of our memory, we might do well to remember the story of the rebellious prince who ran away from the palace of his father the King. "Come back," said the King through his most trusted messenger, only to be told "I cannot." Back came the royal reply: "Go as far as you can, and I will come to you the rest of the way."

8 Bender's Immigr. Bull. 1110 (July 1, 2003).