Bring back the old bipartisan immigration consensus!

A secure border, a path to citizenship, new legal channels, and no giant flow of asylum claims

Here are some things that I believed about immigration 10-15 years ago, a time when the immigration issue was less polarized:

1. Immigration is a big part of the historical reason that the United States became the world’s hegemonic superpower rather than a somewhat warmer version of Canada or a somewhat cooler version of Australia.

2. Immigration is, in the aggregate and over the long-term, economically beneficial to the receiving country, though it is of course even more beneficial to the immigrants themselves.

3. Modern nations have a legitimate interest in controlling who crosses their borders and in what manner.

4. Democratic publics have a right to make decisions about who will enter and under what circumstances — including a right to take into consideration basically subjective questions about diversity, culture, and change.

5. It is, generally, desirable for the laws that are on the books to be enforced rigorously and impartially, and for unjust or unwise laws to be repealed rather than ignored.

6. Public sector resources are limited, and there are sadly lots of laws that get broken without the perpetrators being apprehended. The fact that on any given day there are lots of people stealing cars in Florida does not mean that the Governor of Florida is refusing to enforce the laws against car theft, that it is an open state for car thieves, or that property rights in vehicles are nonexistent in the state.

7. Most of the people who immigrate to the United States illegally are very similar to the people who immigrated legally under the pre-1920s policy regime — they mean no harm to anyone and their efforts are not harmful to the country.

8. The long-term benefits of immigration hinge in part on the extraordinary upward mobilization of second-generation immigrants, while the short-term impact is more variable, especially in terms of the fiscal impact on state and local governments.

9. The unintended legacy of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act was that illicit seasonal labor migration was largely replaced by one-off permanent migration, while the three- and 10-year bans made it harder than ever for permanent unauthorized residents to regularize their status without meaningfully deterring illegal entry.

10. The number of undocumented people who arrived during the 1987-2007 period was so large as to make it fundamentally unfeasible to apprehend and deport all of the millions and millions of people who were legally eligible for removal.

11. While staunching the “flow” of new illegal border crossings is a nontrivial undertaking, it seems like it should be doable.

At that time, I think most Democratic Party elected officials and some Republican Party elected officials would have basically agreed — though I acknowledge that most Republicans and some Democrats were more conservative than this and a few Democrats were to my left. But these basic ideas were the inspiration for two major pieces of bipartisan legislation, one that came together in 2007 and another in 2013. Both of them almost passed Congress but fell just short. And they both included the following:

• Changes to the rules for who could get a visa that better optimized for economic benefits.

• An increase in the total number of people who’d be allowed to immigrate legally.

• A significant investment in border security and interdiction.

• A program whereby long-resident undocumented immigrants could present themselves to the authorities and receive work permits, conditional on passing a background check and paying back taxes and/or some kind of fine.

The goals were to make the border more secure, to meet the labor market needs of the economy, to be humane, and to “drain the swamp” of unauthorized residents in order to make it easier to conduct interior enforcement operations on a much smaller population of actual criminals and illicit recent arrivals.

America went in another direction

Sadly, neither the Bush/Kennedy/McCain version of this package nor the Obama/Rubio/Menendez one came together. Doubly sadly, Marco Rubio abandoned his own immigration policy ideas in a failed effort to run for president, only to lose badly.

But most sadly of all, subsequent events have largely confirmed exactly what us old-time immigration reformers believed:

• “Self-deportation” (i.e., being mean to undocumented immigrants and hoping they leave) is not particularly feasible.

• Even if you could push a button and magically transport all the undocumented people out of the country, having millions of gainfully employed people suddenly vanish would be disruptive and immiserating, which is one reason it didn’t happen even under Trump.

• In the absence of adequate legal pathways for the supply and demand of immigrant labor, relying purely on interdiction to prevent irregular flows of people is very, very difficult.

• Interior enforcement resources are constantly overwhelmed by the sheer number of people living in the country illegally — the relevant agencies have been given a totally impossible job, and it wouldn’t be desirable for them to succeed anyway.

• Foreigners in possession of specialized skills or professional credentials that could be very useful to the American economy don’t want to sneak into the country and work here illegally, so despite spotty enforcement of the immigration laws, there are also tons of missed opportunities for win-win matches between employers and foreign-born workers.

• The current demographic trajectory of the United States is not consistent with giving everyone the Social Security benefits they’ve been promised.

Over and above all that, two things are now true that were not true in 2007 or 2013.

One is that the American labor market is at or around full employment. This means we do not currently have a large quantity of unused resources that can be mobilized to generate demand-led growth. If the economy is going to grow, it needs a mix of new inputs (more labor and capital) and higher productivity, both of which can be provided by immigration.

The second is that in contrast to the old dichotomy between legal immigration and illegal immigration, we have seen a huge increase in the use of the asylum system to generate a form of gray market immigration. This is a serious and important topic. But it’s also come to completely swallow the older immigration debate in a way that is strange. Conservatives have started conflating asylum-seekers with illegal immigration, completely muddying the distinction between people sneaking across the border undetected and border security officials having logistical problems managing the large number of people they’ve apprehended. At the same time, progressives have become consumed with counterpunching against conservative xenophobia and gotten away from trying to sketch a vision of what immigration should look like.

The asylum status quo is actually really bad

Ever since Joe Biden became president, conservatives have branded all the problems with the asylum system as “Biden’s border crisis.” This conveniently elides that essentially the same problems existed under Donald Trump’s presidency.

But this 2018 brief from the Heritage Foundation — which was written when Trump was president and frames the asylum situation as a policy problem to be solved rather than a partisan opportunity to be exploited — shows the genuinely difficult nature of the problem. As they explain, the asylum system worked well when the number of asylum claims was relatively low and a large share of the claims made were adjudicated in favor of the claimant. But more people started making claims, which overwhelmed the system and had the perverse consequence of encouraging more claims:

Both affirmative claims and defensive claims of asylum have risen significantly. In 2016, 115,399 affirmative asylum applications were submitted, an approximate increase of 100 percent from 2014 and the seventh consecutive year of increases. These growing number of affirmative claims of asylum are adjudicated by an ever-shrinking number of U.S. Citizenship and Immigration Services (USCIS) asylum officers, as these officers have increasingly been sent to conduct credible fear interviews. as a result, USCIS asylum officers are adjudicating fewer affirmative cases and referring fewer cases to immi- gration judges in the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR). Defensive asylum claims also increased to 65,218 in 2016, up from 45,770 in 2015.

In addition, immigrants who are placed into expedited removal—streamlined removal of illegal immi- grants who have been in the U.S. for less than two years by immigration officers rather than immigration courts—may claim a credible fear of persecution to stop their removal. This claim prompts a credible fear interview, in which asylum officers determine if there is a “significant possibility” that an alien can establish persecution or a well-founded fear of perse- cution before an immigration judge. If such credible fear is found, then the alien must make her case to an immigration judge as a defensive claim to asylum. If credible fear is not found, she is removed. In 2008, DHS asylum officers referred 5,100 cases meeting this credible fear threshold to immigration courts but in 2016 DHS referred almost 92,000 cases.

The upshot of this, as Heritage noted at the time, is that claims were taking longer and longer to adjudicate, but asylum applicants were having lower and lower success rates.

In other words, people with valid claims were having a harder time getting their claims approved because they were stuck in a backlog of failed claims. But precisely because the backlog was so long, DHS had no capacity to detain everyone while they waited for hearings, so lots of people were being released into the country to wait. That in turn created large incentives for people with objectively low odds of making an asylum claim to take their shot. That then intersected with various levels of opportunism, ranging from just “smart lawyers trying to help their clients” to “malicious smugglers trying to export people for money,” resulting in a badly broken system.

• The recommendations the Heritage Foundation made at the time included more funding for immigration courts, more use of ankle bracelets as a cost-effective alternative to detention, and more efforts to process asylum claims in Mexico.

• Flash forward to 2022 and the Biden administration is seeking more funding for immigration courts, deploying cost-effective alternatives to detention, and trying to process asylum claims outside of the United States.

This is not really working under Biden, and I think the truth is that it didn’t really work under Trump either. Just remember that the way politics works is that when asylum seekers show up and Joe Biden is president, Republicans say that shows Joe Biden has open borders policies that are failing. But when asylum seekers showed up under Donald Trump, Republicans said that showed we needed Trump in office to save us from the scary caravans. The truth is that no administration has a magic wand to stop people from seeking asylum.

Trump did eventually hit on, with some success, externalizing immigration enforcement to Mexico. There was a good Guardian article in January 2020 headlined “Mexico has become Trump’s wall: How AMLO became an immigration enforcer.”

Externalizing enforcement

Articles like that one weren’t very widely read, and the American media didn’t offer much coverage of migration during the relatively brief period when asylum claims really did drop.

Back when I co-hosted the Weeds with Dara Lind, we touched on these issues frequently since they’re a specialty of hers. But the basic dynamic is that if the U.S. government did something cruel like family separation, people would get mad. But if asylum-seekers were getting lots of social services and good treatment, people would also get mad. And if people were suffering in squalor on the streets, that also made people mad. But if you push the situation into Mexico, people just didn’t pay that much attention. You’d have to go read Human Rights Watch reports to find out about the cruel things being done by Mexican immigration enforcement authorities that, had they been done in America, would have been on television.

My joke at the time was that rather than Mexico paying for a wall on the southern border of the United States, we were going to end up with the United States paying for a wall on the southern border of Mexico.

One way or the other, after the election my supposition was that the Biden administration would make some largely superficial changes to Trump’s handling of asylum-seekers and essentially continue with externalizing enforcement to Mexico and Central American governments. This is fundamentally how the EU ended up handling asylum claims, and the political and substantive logic is just very strong. The Biden-y way to articulate this is to talk about a strategy to address the root causes of migration that involves decent amounts of aid money for countries in the region, plus asking those countries to stop letting people show up at the U.S.-Mexico border.

So as we enter Biden’s second autumn in office, I think we’re seeing the real difference between him and Trump on migration: after a lot of trying and failing, Trump was finally able to make externalization work, while Biden, so far, has not.

I don’t think it is entirely knowable whether Trump’s success would have continued if he remained in office (the incentives to defect from this kind of arrangement are large), but it clearly has not since Biden took over. And while the reason is not entirely obvious, it is not a change in formal policy. Going back to early March 2021, Biden asked Mexico to cut off the flow of people, and then a few weeks later sent envoys to Guatemala with the same message. At a July 12 meeting between Biden and AMLO, getting Mexico to cut off the flow of people was high on the agenda, which followed the Los Angeles Declaration on Migration that Biden put together in June with other Western Hemisphere countries.

What’s actually going on here? I have no idea.

People sometimes get mad at me for being too much of a generalist and writing stories on topics I don’t know anything about. I think a lot of the media has the opposite problem, where everyone wants to write stories that explain what they do know rather than what nobody seems to know. I have not found anywhere in the English language press a good account of what the Mexican government is thinking or doing. Are they sincerely overwhelmed and can’t block migrants? Are they refusing to do it because they want something from Biden and he won’t give it to them? If so, what is it that he won’t give them? And why did Trump have more success with this? Back on July 5, Natalie Kitroeff and Maria Abi-Habib, who cover Mexico for the The New York Times, ran an intriguing hit piece on U.S. Ambassador to Mexico Ken Salazar in which “several U.S. officials” described what they “say is a worrying pattern, in which America’s top diplomat in Mexico has appeared to contradict his own government’s policies in the interest of aligning himself with President Andrés Manuel López Obrador.”

I wish they would follow up on that, or that someone who does dishy D.C.-insider reporting had tried to. Or if you’re reading this and are a highly placed administration official, maybe you want to tell me what the deal is — did the U.S. ambassador to Mexico go rogue?

I don’t know what’s going on. What I do know is this should not be the entirety of our immigration debate.

Seek a legislative solution

In all the furious politicking about immigration, I am struck by the fact that going all the way back to 2014 when asylum claims first became a big enough deal for me to hear about them, the Obama administration wasn’t saying “in our opinion, it’s good that lots of Central Americans are crossing Mexico to make asylum claims in the United States.”

Some people may have thought that, but the Obama administration didn't.

Instead, the whole debate consisted of Republicans saying the asylum-seekers were coming because of DACA and Obama denying that was the reason. They then kept coming under Trump, stopping temporarily when he got the Mexican government to stop them. And now they are back under Biden, with Republicans again saying it is Biden’s fault, and Biden — like Obama — denying that it is his fault but not saying that the influx of claimants is good.

I wish Republicans would stop being such opportunistic jackasses about this. At the same time, politics ain’t beanbag and folks are going to do what they’re going to do.

Given that Democrats generally agree with Republicans that this influx of asylum-claimants is bad, and given that Democrats cannot beat Republicans in a war of performative outrage and dumb stunts, the sane thing to do is to try to come to the table and negotiate legislative changes to asylum law. In particular, the frontline Democrats who a few months ago were urging Biden to continue using pretextual CDC rules to bar asylum-seekers should sit down with Republicans and develop a non-pretextual legislative framework to accomplish the reduction in asylum claims that everyone seems to agree should be the goal.

Biden, who is good at doing bipartisan bills and understands that less is more from the White House in this regard, should bless the general concept but not be the public face of the talks. I don’t personally have incredibly strong feelings about what the rules for asylum ought to be. I’m very pro-immigration so I’m inclined to be generous, but I’m also very focused on the economic benefits of immigration, and a chaotic flow of asylum claimants is not the way to maximize those. What’s important is to have some kind of sustainable consensus. In general, I think people don’t want to see folks crossing through Mexico to make claims in the United States. If we want to be generous specifically to Cuban and Venezuelan claims because Republicans agree that people fleeing communism are sympathetic, then that’s great. If Republicans don’t feel that way, then I can live with that, too.

But Democrats should take seriously the implications of their own “we agree this is bad but don’t blame us” posture on this and try to do something. And then they should try to return to Classic Immigration Reform.

The old consensus was good

One of the aspects of the asylum debate that bothers me, as an immigration-lover, is that it has completely sucked up the oxygen on immigration.

But the idea of creating a way for the majority of the undocumented population to pay a fine, pay back taxes, and receive legal status still makes sense to me. Normal police officers would have an easier time enforcing the law and solving crimes if serious criminals couldn’t hide amongst tons of people fearing deportation. Interior removals would be more effective if ICE were trying to drain a lake of unauthorized residents rather than an ocean. Removing every worker here illegally would hurt the economy, while regularizing their status so they can get bank accounts and loans would improve the economy.

The concern that amnesty would attract more illegal immigration is perfectly reasonable, so pairing this with stepped-up enforcement (probably focused on things like E-Verify rather than the border per se) makes sense.

And then we should create more and better paths for legal migration to the country.

Some of that should be focused on green cards for people with skills. But some of it should be focused on areas like agriculture. It is beneficial to the United States to have a thriving farm sector, but encouraging Americans to earn a living as seasonal crop pickers is a terrible economic development strategy. Let foreign-born temporary workers do it in large numbers, and everyone wins. Given that we are realistically only going to admit a finite number of people, we should try to optimize selection to ensure that the people who come are of net fiscal benefit to the United States. Given that local conditions differ, we should create systems for more local voices in terms of who opts in and who opts out of receiving foreign-born workers. And if you have immigrants who are fiscally beneficial and headed to areas that want them, then you should want immigrants in larger rather than smaller numbers.

These were all banal ideas in 2007 and 2013, and they were also good ones. Today, they've become unfashionable, but they’re still good.