Time to Stop Digging

President Joe Biden and the Democrats face severe headwinds in the upcoming 2022 midterm elections. Among the gusts blowing are surging inflation, the Covid pandemic, soaring federal deficits, the abortion wars, the indelible images of a botched Afghanistan withdrawal, and Republicans’ gerrymandered advantages in many key states. None of these gusts is likely to subside soon. Meanwhile some new ones have arisen—including public weariness of the growing fiscal cost of a Ukraine rescue mission despite admiration for the extraordinary, inspiring Ukrainian resistance.

But the Democrats face another, more familiar challenge: their own leaders’ position on undocumented immigration, especially at the southern border. While the number of undocumented persons swarming over the border has long been high, it is historically higher than ever and will rise even more during the warm weather months. With the undocumented routinely asserting asylum claims—most know this is a crucial part of the migration game— hearing requirements for those who can credibly allege fear back home are soaring. To make matters worse, the Biden administration has tied itself in knots over whether and how to pursue Title 42 enforcement that authorizes prompt removal for public health (here, Covid) reasons and thus avoids time- and resource-consuming legal requirements for an asylum hearing at the border.
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The Title 42 imbroglio is just one of many legal disputes that have arisen over the southern border. Others include the conditions in which would-be border-crossers are detained, reunification of families, the education and care of children, and prompt notification of child welfare agencies operating at the border. This forces federal judges in Texas and related states to play an ill-defined (sometimes ill-informed) but nonetheless central role in developing and implementing immigration policy on the ground. Because the line between Biden administration policy and the often skeptical or downright hostile decisions by the courts is blurred, it is often unclear who is responsible for calling the shots. This pattern of shared responsibility and uncertain deference tends to produce great confusion and dodging of responsibility. In theory, the courts have the last word, but the realistic constraints of administering conditions around the border leave most of the blame for the chaos on the administration.

On June 10, President Biden, along with twenty leaders of other regional countries, signed a Los Angeles Declaration on Migration and Protection designed to regularize pressure on the American border by tripling the number of refugees the United States will admit from Latin America during the next two years; tripling the number currently admitted from the region; and issuing 11,500 more seasonal worker visas from Central America and Haiti. In return, Mexico, Canada, Spain, and some other related countries agreed to increase their intake and curb human trafficking.

Notably, however, El Salvador, Venezuela, and Honduras—major contributors to the northward flow—did not participate in the Los Angeles declaration, and serious doubts about its limited impact and implementation continue. Indeed, only a few days later, the New York Times reported on a huge caravan of over six thousand migrants, most from Mexico and Venezuela, occupying entire highways on their way to the U.S. border. With the LA Declaration addressing a mere drop in the migration bucket, the administration has clearly signaled its reluctance to adopt the harsher enforcement measures demanded by Republicans on the congressional and presidential campaign trails.

The focus on illegal border crossing largely ignores the roughly half of the undocumented population who previously entered on legal visas but who then overstayed or violated other visa conditions. Biden has plenty of company in this weak interior enforcement. No administration before his of either party, including Trump’s, seriously pursued it: Factory raids are politically disruptive and sanctions imposed on employers are rare and low. Without pressure from Washington, including an overhaul of the E-Verify system that is key to interior enforcement, enforcement will remain casual and feckless.

In truth, enforcement problems would plague any administration beset by these conditions and limitations: Immigration enforcement that is both humane and effective is mostly a contradiction in terms. But the Biden administration faces an additional burden that Republicans don’t: the Democratic Left, especially Vice President Kamala Harris. In a June 2020 Democratic presidential debate, then-Senator Harris answered a question about deporting people who are in the United States illegally but who have committed no other offense. Harris, who clearly welcomed the question, immediately and vehemently responded, “Absolutely not, they should not be deported.” Neither Biden nor any other candidate contradicted her, yet a different answer—“Yes, they should be deported unless they have a valid asylum claim or some other special legal claim to remain”—should have been a no-brainer.

Harris’ unequivocal response ignores perhaps the key fact about U.S. immigration politics and policy: Most Americans will accept more legal immigrants only if they believe we can effectively limit illegal ones. This is why “secure borders” is a mantra of all immigration politics; it is an essential feature of nationhood and one to which Democratic leaders have always purported to subscribe—until Harris’s response. Ignoring what voters demand on this issue is a huge political gift to Republican candidates, one that will keep on giving as they press their Democratic opponents to defend the indefensible words of their Vice President and her debate colleagues.

But this is not all. Proudly progressive Democratic leaders have enthusiastically advocated not only non-enforcement of our borders but other extreme and unpopular measures. A forthcoming monograph by Jack Citrin and Berkeley colleagues about Americans’ attitudes toward immigration confirms how low public support is for many measures recently endorsed by some Democratic leaders:

Examples include abolishing ICE [the main border enforcement agency], decriminalizing illegal border crossings, sanctuary cities, extending government benefits such as health insurance to illegal immigrants, and preserving (let alone expanding) the ‘diversity’ visa lottery.... [A] Harvard-Harris poll from early 2017 found 80% of the public opposed to a standard conception of sanctuary cities. Americans opposed the diversity lottery in a Reuters poll by 60-25. A PBS NewsHour-Marist poll from December 2019 found 66% thought decriminalizing illegal border crossings a ‘bad idea,’ ... while in the same poll 62% thought ‘a national health insurance program available for immigrants who are in the U.S. illegally’ a bad idea.

These Democrats don’t seem to realize that the same American voters who demand enforcement-secured borders also favor immigration—so long as it is legal and at levels they view as moderate. More than any other nation (Canada perhaps excepted), Americans admire legal immigrants, especially those they know personally. This is hardly surprising; the vast majority of them are law-abiding, patriotic, and progressing toward English fluency. Many of them marry Americans, have remarkable personal stories (like Americans’ own ancestors), and quickly identify with their new country.

Moreover, the Citrin study reveals that Americans’ insistence on border security is more nuanced than one might think. Two examples illustrate this point. First, public demands for secure borders do not extend to support for building a wall. Second, their universal demand for border security coexists with a flexibility about the undocumented who are already here and already integrating into our society. Indeed, lopsided majorities favor a path to citizenship for this population.

How much comfort should the Democratic Left take on immigration policy issues from Biden’s election victory? Not much. Trump was perhaps the most anti-immigration candidate since the Know-Nothings of the 1850s, making it relatively easy for Democrats to gain broad voter support on immigration issues. Even so, the Electoral College vote was too close for comfort. The Democratic Left should also be troubled that Trump and Republicans more generally attracted an unexpected number of Latino voters. Indeed, growing Latino and Asian support for Republicans may be a longer-term political shift.

Another danger for the Democratic Left—or opportunity, as some may see it—is the possibility that Biden will not run for a second term; after all, he would be eighty-two on Inauguration Day, far older than any other President, and his approval ratings are dismal. Harris, a singularly weak candidate already beyond her extreme views on immigration enforcement, will have an inside track. This all suggests that the Biden administration is endangering Democrats’ electoral prospects by being identified with a feckless set of immigration enforcement policies.

The good news for Democrats is that a good deal of valuable immigration reform can be accomplished before 2024. The bad news is that much of it will be politically difficult, with Republicans being unlikely to cooperate if it means handing Biden a victory. Still, the Democrats can make a strong meritorious case on a number of measures which include some that Republicans may have to support or even sponsor. After all, Republicans are likely to gain seats, more governing responsibility, and perhaps even control of one or both chambers in the next Congress.

The first reform should be to invest the necessary resources in stronger immigration enforcement, both at the borders and in the interior. This is an obvious measure, of course, and all administrations, Biden’s included, promise to do so. But the measures taken are never adequate to meet the ever greater challenge. Last year, a record number (more than 1.7 million) of apparently undocumented would-be border crossers were taken into custody, at least briefly—vastly exceeding the Border Patrol’s detention capacity. Neither the Biden administration nor any of its predecessors has invested the fiscal and human resources necessary to make a significant reduction in this human tsunami. It will require a quantum leap in all sorts of resources: line and supervisory officers, detention space, immigration judges, attorneys, translators, transport, diplomatic arrangements, detection technology, and facilities for health, child care, and other human needs. A grand bargain with congressional Republicans would have to include a serious commitment to interior enforcement—with all of the disruption and cost that it entails—and a willingness to share blame and credit equally.

Obviously, the undocumented immigration challenge also includes those already here. For a decade, the Deferred Action for Childhood Arrivals (DACA) program has authorized temporary relief from removal for almost two million “Dreamers” (minors who entered the United States illegally with their parents). Roughly eight hundred thousand have actually received it. The program, however, was invalidated (again) last summer by a federal district judge in Texas and is not taking new applications. The Biden administration can aid these families only by slow-walking their removals, an evasive tactic that inevitably undermines the credibility of the nation’s larger immigration-enforcement effort. A permanent resolution is essential. Relatedly, the number of “mixed-status” families—those headed by unauthorized adults but that also includes U.S. citizens under eighteen—likely exceeds six million and is steadily growing. ICE can’t simply remove these adults without causing immense harm—not only to their unauthorized family members but also to their U.S. citizen (or non-citizen) children and communities. Policy ought to be realistic about this.

Relative to the estimated eleven million illegal immigrants residing in the United States, the nation’s removal capacity is in fact severely limited. If past is prologue, ICE will formally remove relatively few—far fewer than 1 percent—of them: 55,000 in 2021, less than a third of the 185,000 removed in 2020, itself a large decline from 2019. (These low numbers don’t count the informal removals effectuated during the pandemic under Title 42.) Here is where a neglected keystone of immigration enforcement comes into play—the systems of immigration courts and detention through which virtually every contested removal case must pass. Despite a large recent increase in immigration judges, their backlog is at a record level of almost 1.6 million cases. And while detention facilities for those awaiting court hearings have also been expanded, they are still so limited that the vast majority of detainees must be released pending their long-delayed hearings. This inevitably results in much absconding, illegal work in the United States, and a sense of futility on the part of ICE, the judges, and the public. Sharply increasing the number of immigration judges would reduce the case backlog and shorten periods of detention.

Legalizing the millions of otherwise law-abiding undocumented people who are long-settled in the country would be a relatively easy form of amnesty. The Migration Policy Institute reports that almost two-thirds of this population have lived here for more than a decade, and 22 percent for more than twenty years. Federal law recognizes the difficulty of removing such long-settled illegal residents. Congress long ago enacted a “registry” provision legalizing those undocumented residents who had lived here with “good moral character” for at least fifteen years. Applying the same logic and time frame now, Congress should extend the same relief to otherwise law-abiding undocumented residents settled here since, say, 2007. This would better focus ICE enforcement resources, recognize that assimilation occurs over time, and relieve the deportation anxiety of millions of families.

Amnesty for more recently arrived immigrants is more complicated, however; it must be much more carefully designed to minimize moral anomalies, administrative glitches, and perverse incentives.

Finally, there is the policy option of candid realism. Both political parties might conclude that if Congress would enact some new, generous version of DACA, an updated registry, the kind of broad legalization enacted in 1986, more robust levels of border enforcement (including a more tailored version of Title 42) and employer sanctions, this package might be deemed a satisfactory, realistic policy mix, all things considered. If political ownership of this agenda were shared between the parties and if the public were educated about its pragmatic merits—big ifs, to be sure—genuine progress on one of our most enduring but potentially manageable problems is possible.

Peter H. Schuck, Baldwin Professor of Law Emeritus at Yale Law School, is Distinguished Scholar in Residence at NYU Law School and author of many articles and books on law, public policy, diversity, immigration, and other subjects.

Image: Immigrants to America in 1887, by Frank Leslie's illustrated newspaper, pp. 324-325. https://www.loc.gov/pictures/item/97502086.