Cross-border travel in North America: the challenge of U.S. 110 legislation.

• Author: Cohn, Theodore H.

Globalization is contributing to the broadening and deepening of interdependence among societies and states, and events in one part of the world are having a greater impact on peoples and societies in distant locations. Many states and societal groups have responded to globalization pressures by supporting freer trade, foreign investment and capital flows, but they have generally been far more reluctant to support the freer movement of people. Thus "among factor exchange systems financial markets are the most globalized, [while] labour markets are the least so. No other area of economic life remains so much under the thrall of states and so resistant to globalizing effects."(1) As national regulations on trade, foreign investment, and capital flows are liberalized, there are growing pressures to facilitate international travel by business persons, professionals, and some labor groups such as "guest workers" in Western Europe and farm workers in North America. For example, the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) have provisions to promote freer trade in services, and this often requires physical proximity between the service providers and service users. Pressures therefore increase to permit service providers in one member country to travel more easily to other member countries.(2)

While the pressures to liberalize regulations on cross-border travel have increased, there strong governmental and societal counter-pressures persist. They are particularly evident in North America where the issue of Mexican migration to the United States has been a highly sensitive issue. This paper focuses on one instance where the United States Congress passed highly controversial legislation to closely monitor the cross-border movement of aliens (or non-U.S. citizens) at the Mexico-U.S. and Canada-U.S. borders: Section 110, just one item of the U.S. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Shortly before the 1996 U.S. presidential and congressional elections, the Congress passed the IIRIRA and president Bill Clinton signed the act only two days later. Although Section 110 was to be implemented by September 30, 1998, the U.S. Congress deferred the implementation date for an additional thirty months to March 30, 2001, because of strong opposition from Canada, Mexico, and a wide range of societal groups in the United States. Nevertheless, Section 110 has not been repealed and it continues to pose a major threat to freer cross-border travel in North America.

If Section 110 is implemented, it will require the U.S. Immigration and Naturalization Service (INS) to develop an automated control system that will "collect a record of departure of every alien departing the United States and match the records of departure with the record of the alien's arrival in the United States."(3) In effect, Section 110 will require all non-U.S. citizens to be inspected by an INS officer when leaving or entering the United States at all ports of entry, including land borders. The purpose, according to the text of the act, is to "enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General."(4) The U.S. government is understandably concerned about this issue, because it is estimated that about 40 percent of all illegal immigrants enter the country legally and then remain beyond the permissible time period.(5) In the view of the legislation's supporters, Section 110 would ensure detection of these illegal immigrants whenever they attempted to leave and return to the United States.

But critics have argued that the great majority of people entering the United States with visas follow the rules and depart on time, and that Section 110 would do little to catch those people who are violating U.S. immigration laws.(6) To implement Section 110, the INS would also have to direct huge and costly resources for more inspection officers and new equipment. Indeed, the INS has estimated that two to three billion dollars would be required for infrastructure costs alone without even taking into account increased operating expenses.(7)

Most importantly for this paper, critics maintain that the implementation of Section 110 would also have a number of unintended consequences. First, most of the illegal immigration occurs along the southern U.S. border, but according to Greg Boos, an immigration attorney in Bellingham, Washington, the new law would also apply to Canadians crossing the northern U.S. border, and this fact had not been generally evident to the members of Congress when they had voted for the legislation.(8) Second, although Section 110 is aimed at only one type of cross- border travel -- illegal immigration in the United States -- it would adversely affect cross-border travel for a wide range of purposes totally unrelated to immigration. Each year about 116 million people cross the Canada-U.S. land border and at least 254 million people cross the Mexico-U.S. land border. Section 110 procedures would result in massive delays and exert a devastating impact on people such as shoppers, commuters, tourists, and those visiting family and friends for relatively brief periods. Third, Section 110 would severely interfere with NAFTA's goal of freeing trade between Canada, the United States and Mexico. About 70 percent of all bilateral merchandise trade between Canada and the United States is shipped by truck, and the vast majority of Mexico-U.S. trade is also transported across the land border by an estimated 3.5 million trucks each year. "Just in time" delivery has become the norm in the automobile and other manufacturing sectors, and the cross-border "delivery of parts delayed by as little as 20 minutes can cause expensive assembly line shutdowns" in auto plants in Michigan and Ontario.(9) Clearly, the border delays caused by Section 110 would have a substantial impact on the commercial activities of the three North American states.

Drawing upon the literature on domestic-international interactions by Helen Milner and Robert Keohane, this essay uses several variables to explain why the U.S. Congress and president enacted Section 110, and why Congress has delayed its implementation but thus far has not repealed it. Particular attention is given to the factors determining who has had most influence in congressional policy-making on issues such as Section 110. For instance, a relatively small number of congressional staffers and members selected the final wording for the Section 110 legislation, and a large number of members of Congress voted for it without fully realizing its implications. A range of societal and governmental factors also contributed to an anti-immigrant atmosphere which was conducive both to the passage of Section 110 and to reluctance to repeal it. This paper also argues that NAFTA is changing the "architecture" of North American

relationships so that it is becoming more difficult to separate Canada-U.S. from Mexico-U.S. cross-border travel issues. Although Canadians have been able to travel across the U.S. border far more easily than Mexicans, NAFTA's impact helps to explain why Canada has not been exempted from the Section 110 legislation.(10)

In a more general sense, the essay shows that the internal struggle among domestic groups often plays a critical role in determining whether the United States will have a cooperative or conflictual relationship with Canada and Mexico on foreign policy issues. In an age of interdependence it also becomes more difficult to separate domestic from international issues, and transnational alliances among groups in all three countries have had a major influence on the domestic U.S. debate over cross-border travel. Intergovernmental cooperation occurs when "the policies actually followed by one government are regarded by its partners as facilitating realization of their own objectives, as the result of a process of policy coordination."(11) Cooperation is usually contrasted with competition or conflict, "both of which imply goal-seeking behavior that strives to reduce the gains available to others or to impede their want-satisfaction."(12)

Since Section 110 threatens to impose delays and inconvenience on anyone crossing the southern and northern U.S. borders for any reason, it could severely impede the "want-satisfaction" of Canadians, Mexicans, and those Americans with a vested interest in developing cross-border linkages. It is therefore not surprising that Section 110 has contributed to a considerable amount of ill-feeling and controversy. For example, Canada's ambassador to the United States has indicated that Section 110 "could have significant cost implications for the United States as well as affect the mobility of millions of Canadians." The Mexican ambassador to Washington has argued that Section 110 would "disrupt the intense trade relationship" between the two countries and interfere with the development of border communities. According to Senator Edward Kennedy of Massachusetts, implementing "the Section 110 system across the board at this time would do more harm than good." Governor George Bush of Texas has cautioned that "provisions such as this could have a severe economic impact on our border communities, as increased delays translate to fewer cars, trucks and people crossing the border to conduct business and do their shopping."(13) A member of the U.S. House of Representatives from North Dakota expressed the views of many congressional critics of Section 110 when he stated that the measure proposed to "put in place a system that could not work, that will not work, and that threatens commerce on both borders."(14)

Some background on globalization and attitudes toward cross-border travel, on the role of the North American Free Trade Agreement, and on the approach used in...