Reorganization as a substitute for reform: the abolition of the INS.

• Author: Manns, Jeffrey
• Position: Immigration policy

September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that the Immigration and Naturalization Service (INS) is an agency beyond repair. (1) Critics from both ends of the political spectrum have condemned the INS for its failures. As House Minority Leader Richard A. Gephardt stated, "We saw in the 9/11 incident some of the problems in the INS that many of us had seen before.... It became clear, I think, to everybody in the country and in the Congress that we needed reform." (2)

Consensus on the need for reform may be clear, but the question remains of what shape reform should take. Unfortunately, politicians have taken the path of least resistance by focusing on reorganization plans, rather than tackling the substantive issues that plague the INS. (3) The Bush Administration and both houses of Congress have differed about what form a reorganization should assume. (4) Their proposals share a misguided faith, however, in the efficacy of agency restructurings as a vehicle for reform.

These proposals are the latest variation on an old theme. (5) Reorganizations have long served as politicians' tool of choice for reforming the American administrative state. (6) Such plans do have the potential to effect widespread change by shaking up agency culture and reallocating management responsibilities and personnel. At the same time, the literature on reorganizations casts doubt on their efficacy as a vehicle for reform. (7) As Paul Light has highlighted, the pursuit of too many competing goals through agency reorganizations has often served as a formula for failure. (8) Donald Kettl and John DiIulio have documented how the "overwhelming result" of agency restructurings has been "an intransigent gap between the effort invested and the results produced." (9) In practice, the main virtue of reorganizations may be their role as politicians' symbolic substitute for tackling the underlying problems that agencies face.

This Comment raises doubts about whether any of the reorganization proposals have the potential to accomplish their intended goals. It assesses the potential and limits of the five main proposals to reorganize the INS. This Comment concludes that the Senate proposal sponsored by Senators Ted Kennedy and Sam Brownback is the strongest in a set of weak options because it seeks to accomplish the least through restructuring and would leave agency leaders with the most flexibility to make future changes. Regardless of which proposal is enacted, the hope for reform lies in politicians' recognition that "restructuring alone is not going to solve all the problems, [but rather] just begins the effort" (10) of reexamining the assumptions, goals, and approaches of immigration policy.

I

This Part considers the limits and potential benefits of each of the five main proposals for reorganizing the INS that have been raised in the wake of 9/11. (11) The five proposals are: (1) the INS's internal reorganization plan; (12) (2) and (3) the main House (Sensenbrenner-Gekas)

(13) and Senate (Brownback-Kennedy) (14) proposals to create a new immigration agency with a sharper separation between service and enforcement bureaus; (4) the Bush Administration's plan to subsume an unchanged INS into the proposed Department of Homeland Security; (15) and (5) the likely legislative compromise to shift the INS's enforcement functions to the Department of Homeland Security and to leave the service functions in the Department of Justice (DOJ). (16)

Each proposal, except for the Administration's original Homeland Security plan, seeks to reorganize the INS along functional lines. The INS's internal reorganization plan would create separate enforcement and service bureaus at the national and field office levels. (17) This plan would attempt to strengthen coordination and oversight by consolidating agency-wide responsibilities for information management, budget, legal matters, and policy and planning in executive positions within the Office of the Commissioner. (18) The INS would remain within the DOJ. (19)

In contrast, the Sensenbrenner-Gekas and Brownback-Kennedy proposals go further in calling for a more comprehensive division of immigration functions into service and enforcement bureaus. (20) Both of these proposals call for the formal abolition of the INS and the creation of a new immigration agency within the DOJ. (21) These proposals appear designed to elevate the prominence of a new immigration agency and its potential influence on DOJ policy and to give the agency a fresh start. (22)

The Sensenbrenner-Gekas and Brownback-Kennedy proposals differ in some significant respects...