The term “de facto amnesty” came into widespread use early in the last decade when supporters of comprehensive immigration reform began working on legislation in Congress.
The idea was to call attention to the broken federal immigration system and raise the issue that doing nothing about it was tantamount to granting amnesty to the 11 million undocumented immigrants living in the country.
The term was most often aimed at conservatives in an effort to win their support for reform by harkening back to the Simpson-Mazzoli Act, more formally known as the Immigration Reform and Control Act (IRCA) of 1986, that granted amnesty to millions of undocumented immigrants during the Reagan administration.
Conservatives often cite that law as one of the worst mistakes the nation has made in dealing with immigration. They blame it for encouraging future waves of illegal immigration and rewarding those who broke the law.
Starting as early as 2003, Sens. John McCain, R-Ariz., and Edward Kennedy, D-Mass., began working on a bipartisan effort to pass an immigration reform bill in the U.S. Senate. The use of the “de facto amnesty” argument became part of their effort to convince colleagues to find the political courage to join the reform movement.
Doing nothing, reformers argued, was de facto amnesty because it allowed immigrants who had broken the law to stay in the country without penalty. Allowing the status quo was just as much a reward for the violators as the amnesty of 1986.
McCain, Kennedy and their supporters argued that comprehensive reform could actually be a way to punish violators and deter migrants from coming here illegally in the future. The reformers wanted to shift perception of the issue from what the undocumented immigrants would receive to what they would give the government (for example, taxes, fines and clean background checks) in order to remain in the country.
After their 2012 election defeat, Republicans began using “de facto amnesty” more often as reason to act. The party clearly needed to address immigration reform to reach out to Hispanic voters, after President Obama won 71% of their votes in coasting to victory.
Tea Party members have seldom bought the de facto amnesty argument. Most support only mass deportation as a solution for the 11 million unauthorized immigrants living here. Tea Party groups generally hold that any plan short of deportation is blanket amnesty and as wrong as the failed 1986 reform efforts.
The bipartisan “Gang of Eight” that worked on immigration reform beginning in 2012 relied on convincing skeptics that doing nothing was unacceptable -- politically, practically and morally.
Sen. Marco Rubio, R-Fla., one of the group’s leaders, frequently invoked the term: “My job in the Senate is not just to give speeches and do interviews, it’s to solve problems. And anyone who thinks that what we have right now on immigration is not a problem is fooling themselves. What we have right now is de facto amnesty,” he said during a 2013 television interview.
Sen. McCain also used it often, as he had throughout the last decade: “The reality that’s been created is a de facto amnesty. We have been too content for too long to allow individuals to mow our lawn, serve our food, clean our homes, and even watch our children, while not affording them any of the benefits that make our country so great,” he said during a 2013 press conference.
Sen. Jeff Flake, R-Ariz., another member of the Gang, started talking about it when he was still a congressman: "Because of the lack of serious workplace enforcement and the absence of a meaningful temporary worker program, we have essentially created a de facto amnesty. Illegal immigrants know that once they get into the country, they're home free," he said in a 2004 press release.
In the spring of 2013, Americans for a Conservative Direction, a Republican lobbying group, began running television advertising calling the broken system “de facto amnesty” for the 11 million.