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May 25, 2006
A Note On Consultation (Updated)

Like many in the conservative blogosphere, I am generally unhappy with the final version of the Senate comprehensive-reform plan that will now head into conference committee, where hopefully the House will strip it of its silliness and present something respectable to the joint session. One particular amendment, offered at the last minute by Senator Chris Dodd has caused an uproar, seemingly giving Mexico a veto on the construction of border barriers:


(1) There are currently between 10-12 million illegal immigrants in the United States in 2006.

(2) As many as 70% of such migrants are citizens of Mexico.

(3) More than 1 million illegal migrants are apprehended annually in the United States southern border area attempting to illegally enter the United States, with an additional 500,000 entering undetected.

(4) Despite Operation Gatekeeper which began in 1994 with the construction of fencing in urban crossing areas and other efforts to stem the flow of illegal immigration, the flow of such migration has continued at high levels.

(5) Migrants have continued to cross into remote rural areas where difficult terrain and climate conditions have caused the deaths of some 2500 migrants over the last decade.

(6) Communities on both sides of the border will be impacted by the construction of additional fences and security structures.

(7) Illegal immigration cannot be permanently resolved or contained without the cooperation of Mexico and other countries that are the source of such migration.

(8) After some years of turning a blind eye to the migrant problem, Mexican authorities have recently acknowledged their responsibility for addressing illegal migration by Mexican citizens.

(9) It is in the interest of the United States to have the full cooperation of Mexican authorities in tackling illegal migration and other border security issues.

(b) CONSULTATION REQUIREMENT.--Consultations between United States and Mexican authorities at the federal, state, and local levels concerning the construction of additional fencing and related border security structures along the United States-Mexico border shall be undertaken prior to commencing any new construction, in order to solicit the views of affected communities, lessen tensions and foster greater understanding and stronger cooperation on this and other important issues of mutual concern.

First, this isn't quite the last-minute amendment it's made out to be. It was introduced three days ago on May 22nd, and the amendment found two co-sponsors: Republican Dick Lugar and Democrat Ken Salazar. The introduction of this amendment understandably got somewhat lost in the flurry of attachments that came at the immigration bill in the final days of its consideration.

More importantly, it pays to carefully read what this amendment says and what it does not say. Consultation between nations on border issues regularly occurs, even if one side often does not like the outcome of the talks. Nowhere in this amendment does it give Mexico a right of refusal on any construction that the US might perform on our side of the international boundary, nor does it pretend to require their permission. It only requires the federal government to discuss the project with Mexico before breaking ground on the barrier, a rather polite and ordinary process.

Let's put it another way. If you want to build a fence between your property and your neighbor, friendly people would give the neighbor a call to discuss the composition of the wall or fence. That should be true even if the homeowner intended to build the fence on his own property and cover the entire expense himself. He doesn't have to abide by his neighbor's objections, but at least the conversation can make the process smoother.

If that doesn't satisfy, then let me use an example from a movie made about twenty years ago called Sweet Liberty. The film, which starred Alan Alda and Michael Caine, centered on an author (Alda) who sold a historical review of a Revolutionary War diary to a major Hollywood studio -- which wanted to turn the scholarly work into an American Pie of 1776. Alda discovered that he had a clause granting him consultation rights, which he insisted on enforcing with the director of the movie. After airing out all of his complaints, the director asked Alda, "Is that all?" When Alda affirmed he was finished, the director told him, "Okay. You've had your consultation," and proceeded to change absolutely nothing.

This bill has plenty of bad planning and unworkable legislation in it without us getting hysterical about something completely innocuous and non-binding. Even the hardest hard-liner should recognize that we will have to work with Mexico to get a lasting solution to our immigration problem. All this amendment does is require that we keep the lines open.

UPDATE: At least one commenter claims that the word "shall" gives a stronger binding resolution that "will". This is incorrect. In legal terms, when the words are interpreted differently (which they usually are not), "will" is the more binding term.

Others claim that this clause allows Mexico to exercise some kind of pocket veto if they refuse to participate in consultations. That also doesn't wash. Courts recognize that a spurned offer of consultation will nevertheless meet any legal requirement in law. If, for instance, I am required to arbitrate a dispute with a contractor before filing a lawsuit, the contractor cannot veto my grievances by refusing arbitration. All that is necessary is that I attempted to follow that clause of the contract, exhausting the legal remedies of the agreement before going to court. Not only is this established law, it's common sense.

Again, there are plenty of objectionable provisions in this bill without losing credibility by attacking its meaningless provisions. Let's keep our eyes on the ball.

UPDATE II: Withdrawn -- the amendment did make it into the bill. I'll have more later.

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Posted by Ed Morrissey at May 25, 2006 11:15 PM

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