Immigration

Struggling over Borders

Sidney M. Milkis, David Leblang, Sidney M. Milkis, David Leblang

• Publisher: University of Virginia Press
• Year: 2019
• Print ISBN:
  9780813945330
• eBook ISBN:
  9780813940182
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

In an increasingly polarized political environment, the first year of the new president's term will be especially challenging. With a fresh mandate, however, the first year also offers opportunities that may never come again. The First Year Project is a fascinating initiative by the Miller Center of the University of Virginia that brings together top scholars on the American presidency and experienced officials to explore the first twelve months of past administrations, and draw practical lessons from that history, as we inaugurate a new president in January 2017.

This project is the basis for a new series of digital shorts published as Miller Center Studies on the Presidency. Presented as specially priced collections published exclusively in an ebook format, these timely examinations recognize the experiences of past presidents as an invaluable resource that can edify and instruct the incoming president.

Contributors: Anno O. Law, Brooklyn College * David A. Martin, University of Virginia * Gary Freeman, University of Texas at Austin * Daniel Tichenor, University of Oregon * David Leblang and Sidney Milkis, University of Virginia

Go Comprehensive, Go Bold

The Time Is Actually Ripe to Push Through Immigration Reform

David A. Martin

To the new president:

Almost no one noticed during last year’s ugly and polarized campaign debates over immigration, but the objective conditions in 2017 could be quite auspicious for putting our nation’s migration management system on a breakthrough path to reasonable health. What is needed is your determined presidential leadership, manifesting a clear vision of a balanced and sustainable long-term solution—leadership made vivid by well-chosen administrative innovations.

A successful approach must combine an unmistakable commitment to long-term enforcement with clear and humane reforms drawn from the legalization agenda. The point will be to shock a jaded public into believing that actionable legislative compromise—as well as truly effective, future-oriented enforcement—is actually possible. Your overall approach should include the following elements:

• • Focused enforcement emphasis on recent violators, both at the border and inside the country, not on the long resident.
• • An explicit, early, high-visibility crackdown on those who have overstayed tourist or other visas, which would bolster credibility in law enforcement circles.
• • Enactment of legislation with these key ingredients:
  • ◦ A mandate that all employers electronically check the work authorization of new hires through E-Verify, which is a proven system now voluntarily used by half a million employers.
  • ◦ A clear path to “earned legalization” for those who have long resided in the United States without authorization.
  • ◦ Reform of the rules for legal immigration, for a better match with U.S. and global demand.

To get this result—regardless of party—you will have to disappoint, perhaps enrage, some of your party’s most vocal interest groups on these issues, by championing a few measures from the opposing camp’s playbook.2 This will require an early draw on your postvictory political capital. But if you take a strong stand, hold firm to your vision, and withstand the first few gale-force blowbacks, you’ll have the chance to persuade all but the most militant on either side that their acquiescence will optimize their core goals when played out over time.

Seizing the First Year

Here is why this first year, unlike that of many other presidents, holds promise for immigration breakthroughs. You come into office with the undocumented population already shrinking.3 Mexican migration patterns have been sharply reduced from what your two immediate predecessors faced, a reduction based partly on better border enforcement but mainly on favorable economic and demographic factors in Mexico that should persist.4 In significant part because of that reduced flow (as compared to, say, 2005, when the unauthorized population was growing by 800,000 annually5), the political climate is also more supportive than one would know from watching the evening news.

Media attention goes to the loud, angry, and passionate activists on both sides. (Sample slogans: “Deport them all!” or “Build the wall!” on the right;6 “Not one more [deportation]!” on the left.7) But polls over the last few years have shown wide support for a path to citizenship for unauthorized migrants already long resident, while majorities still favor serious border control and (by implication) would seem ready to accept wider interior enforcement directed at recent violators.8 Another little-known factor is this: the nation’s major investment in immigration controls and systems, developed primarily to counter terrorism after 9/11, created tools that can also be quite effective in curbing ordinary immigration violations, if deployed with imagination.9

You also have timing advantages, at least as it now appears, not enjoyed by your predecessors, both of whom initially planned to launch and maybe secure a legislative solution in their first year. George W. Bush shared a somewhat naïve and incomplete policy plan for reforms with Mexican president Vicente Fox in a highly publicized summit meeting held seven months into his tenure, and the two of them said all the right things to move the process along.10 But that was September 6, 2001—five days before the terrorist attacks. Bush couldn’t seriously reengage on overall immigration reform until 2004.

In May 2008, candidate Barack Obama pledged to push a comprehensive immigration reform bill during his first year in office.11 But in September the global recession thundered in. By the time he assumed office, Obama clearly had to prioritize the economic rescue. To no one’s surprise, he also prioritized the negotiation of his signature (and more heavily promised) health insurance reform ahead of immigration reform. That wound up occupying thirteen valuable early-term months. By the time Obama could have turned to immigration legislation, he had already asked supportive lawmakers to take unpopular, difficult votes on the economic bailout and the Affordable Care Act, and the midterm elections were drawing near. The moment had been lost.

As of now you face nothing comparable. Knock on wood.

But you will have to make this a top legislative priority; real progress on curing our immigration system’s ills will definitely require legislation. Your predecessor was bold in wielding unilateral presidential authority to ease some genuine human problems through “deferred action,” a form of prosecutorial discretion that, under President Obama’s plans, would essentially assure about half of the undocumented that they wouldn’t be removed.12 But the sweeping scope of his measures and the absence of any equivalent boldness on the enforcement side exacerbated the polarization. In any case, Obama repeatedly acknowledged that those steps were only temporary and that Congress would ultimately have to act. Even if the Supreme Court overturns a lower court’s ruling and lifts the stay on President Obama’s broadest “deferred action” initiatives, they would still bring only temporary palliatives.13 You need to keep your eye on a durable fix—and that means legislation.

The Elements

The main pieces of comprehensive reform legislation that can fix our immigration system are well known and generally accepted, even if tepidly. But major disagreements do persist over details and sequencing.

• • Border control. The measures start with border control, stopping new unlawful entries. Congress has already provided major resources here for two decades, and the track record is reasonably good. In 2015 unauthorized border crossings were near their lowest level in forty years. But “border control” needs to be conceived more broadly, to recognize that it requires reliable bolstering by resolute interior enforcement. As many Border Patrol agents will tell you, if the migrants who get past their front line—maybe on a fourth or fifth attempt—can get solid jobs and face little further enforcement risk, that’s a big incentive to keep trying.
• • E-Verify. Interior enforcement in part means arrests, leading to more orders effectuating the removal of violators. But such direct enforcement is costly and less efficient than building what Congress tried but failed to achieve in its 1986 comprehensive bill, the Immigration Reform and Control Act (IRCA): an effective screening system that would make it hard for unauthorized migrants to access U.S. jobs. Jobs are the main draw for illegal migration. But IRCA’s requirement that employers check documents presented by new hires was too easily defeated by false documents. E-Verify, in contrast, gives the employer a speedy Internet-based check of the validity of the documents presented.14 It is already in wide use, on a voluntary basis. E-Verify defeats the most common kinds of fraud that gutted IRCA’s enforcement promise. New legislation should both strengthen the system against identity fraud and make E-Verify mandatory, phased in for all employers.
• • Legal immigration reform. Here the specific prescriptions vary widely, but the idea is to reform the current categories for legal migration to match up better with the most deserving components of the demand for immigrating to the United States, whether for permanent residence or on a temporary basis. This element will probably involve cutting out certain permanent resident admission categories (such as the one for siblings of citizens) in order to use those admission spaces to speed up family reunification for other categories seen to have stronger claims, such as those reflecting nuclear family ties. It may also mean doubling the spaces for employment-based immigration, or even bigger additions focused on certain occupational sectors. Tough choices on details must be made, and diverse interests will push intensely for their favored changes. For instance, be wary of those who favor heavy reliance on temporary worker programs. Such programs presage greater enforcement problems down the road, and they retard U.S. wage gains. And be skeptical of any notion that we can satisfy immigration demand and avoid enforcement dilemmas just by opening our legal channels wide enough. We will always need the capacity to say no to some and to make it stick through enforcement, no matter how much we tinker with legal immigration categories.
• • Legalization of the long-resident unauthorized population. “Earned legalization,” as it is often described, would likely come with waiting periods and fines and perhaps some other requirements. Legalization is a crucial component for immigrant advocacy organizations, and current polls generally show acceptance, if lukewarm, of such a measure by solid majorities. But legalization is the part hardest to swallow for those on the restrictionist right. Nonetheless, a comprehensive plan realistically has to include this element, both to recognize the reality of those who for many years have been de facto members of local communities and of the labor force, and also—and this is important—to clear the decks of older, highly sympathetic cases and thereby give the new enforcement mechanisms their best chance to work.

These elements were all included in the comprehensive immigration reform bill that passed the Senate ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Introduction
• Go Comprehensive, Go Bold: The Time Is Actually Ripe to Push Through Immigration Reform
• Americans First: Changes to Our Immigration System Must Align with Our National Interests
• Cooler Heads: The Next President Should De-escalate Immigration Rhetoric and Push Durable Reform
• Reluctant Reformer: Lyndon Johnson Forged Ahead to Banish Xenophobia from American Immigration Policy
• Contributors
• Notes