Can we rescue comprehensive immigration reform?

A path forward amidst massive backlash

It’s no secret that the United States is experiencing a large anti-immigration backlash that has more than fully reversed the pro-immigration backlash to Trump’s term in office. Still, it’s sobering to look at the numbers and see that “mass deportation” has become a true winning issue for Trump — not just something that plays well with the base, but an idea that commands strong majority support.

At the same time, though, that Pew chart evidences support for a number of specific pro-immigration measures. We shouldn’t let this give us too much hope, because people are still expressing significant generic support for an overall cut in immigration levels.

But I do think the ongoing popularity of many forms of expanded legal immigration gives us something to work with.

Overall, I think the important thing to remember is that in its heyday, the “comprehensive immigration reform” vision was framed in the context of a somewhat punitive attitude to illegal immigration. Chuck Schumer’s 2007 book “Positively American” calls for a plan to “cut illegal immigration in half.” The 2008 platform calls for “tough, practical, and humane immigration reform in the first year of the next administration.” That didn’t happen in 2009, which was seen by the immigration groups as a betrayal by Barack Obama. But look at what came immediately after that in the platform:

We cannot continue to allow people to enter the United States undetected, undocumented, and unchecked. The American people are a welcoming and generous people, but those who enter our country's borders illegally, and those who employ them, disrespect the rule of the law. We need to secure our borders, and support additional personnel, infrastructure, and technology on the border and at our ports of entry. We need additional Customs and Border Protection agents equipped with better technology and real-time intelligence. We need to dismantle human smuggling organizations, combating the crime associated with this trade. We also need to do more to promote economic development in migrant-sending nations, to reduce incentives to come to the United States illegally. And we need to crack down on employers who hire undocumented immigrants. It's a problem when we only enforce our laws against the immigrants themselves, with raids that are ineffective, tear apart families, and leave people detained without adequate access to counsel. We realize that employers need a method to verify whether their employees are legally eligible to work in the United States, and we will ensure that our system is accurate, fair to legal workers, safeguards people's privacy, and cannot be used to discriminate against workers.

To be fair, the platform also says that the upshot of this crackdown is that lots of people who are already here illegally are going to be allowed to stay. There’s a paragraph about improving the legal immigration system, and then one that says, “For the millions living here illegally but otherwise playing by the rules, we must require them to come out of the shadows and get right with the law. We support a system that requires undocumented immigrants who are in good standing to pay a fine, pay taxes, learn English, and go to the back of the line for the opportunity to become citizens.”

The 2012 pitch was broadly similar to this, and if the 2013 comprehensive immigration deal had come up for a vote in the House, it would have passed on a bipartisan basis. And I think its authors would have told you that it made unprecedented investments in border security and internal enforcement. And that yes, it delivered a route to legal status and eventual citizenship for millions of people who came here illegally, but that to earn that status, you had to do things like pay fees and back taxes and show you had no serious criminal record. And that doing this would dramatically reduce the target population for a deportation drive and make it much easier to remove actual troublemakers from the country.

Immigration concern isn’t about labor markets

I think the single most important finding in the Pew poll is that “admitting immigrants who can fill labor shortages” polls very well with 70 percent support overall, including 55 percent support among Trump voters.

The reason this matters is that I think there’s a tendency in center-left circles to misstate the nature of hostility to immigration when encouraging Democrats to be more pragmatic about it. David Leonhardt, for example, construes working class hostility to lax immigration policy as an act of rational economic self-interest. And I sort of get this. In progressive circles there’s a massive stigma against the idea of catering to voters’ less-enlightened views. So if you say working class people want less immigration for good economic reasons, that help bolsters the argument that Democrats should give people what they want. If you say that working class people are a little bit confused and paranoid and you should just pander to them a little, you’re likely to lose the internal argument.

But you’re also going to make the wrong policy choices if you focus on the wrong things. Voters are excited about skilled immigrants, they are eager to let foreign-born college students stay and work after they graduate, and they like the idea of immigrants who fill labor market needs.

On the campaign trail, Trump talks about immigrants committing violent crimes, he says that people are coming into the United States from foreign insane asylums, he says a lack of border control is a counterterrorism threat, and he and his running mate invent stories about Haitians stealing and eating people’s pets. At times, Trump pushes this stuff too far into the crazy zone, even for conservatives. But I think everyone on the left and the center needs to understand that this discourse is the one that’s turned immigration into a winning issue for Trump. When he went down the golden escalator at Trump Tower to launch his campaign, he said Mexico is sending rapists and murderers, not that Mexican-born workers are reducing the relative wages of native-born non-college workers. The wonky economic arguments about immigration are more respectable, but they’re not accurate (see Rogé Karma’s excellent recent article in the Atlantic), and they’re also less persuasive.

I think writer types struggle with this because we (usually) really like immigrants’ impact on broader society and culture. You hang out with intellectuals on vacation in coastal Maine, and everyone’s happy there’s a Thai restaurant in their small vacation town now. If you were going to move to somewhere in Red America, it would probably be Austin or Miami — diverse, cosmopolitan centers of cultural life. But we’re also familiar with left-wing ideas about class solidarity and material politics, so if people are mad about immigration, they must be worried about labor market impacts.

And, indeed, one area where the Biden administration has been less optimistic about immigration than Trump is the field of agricultural guest workers, where Biden has raised labor standards to make it harder for employers to undercut American crop-pickers’ wages. But nobody cares about this! On the contrary, people are mad that groceries aren’t cheaper. The economic aspects of immigration are fine. People worry instead about real or fake crimes, about the idea that immigrants are crowding out social services or mooching off the welfare state, and about immigrants changing American society in ways that they find undesirable.

The reality of “mass deportation”

One striking thing about the current vogue for “mass deportation” is that Donald Trump was president for four years and did a lot of wacky stuff, but he absolutely did not attempt the large-scale removal of people from the interior of the United States. In fact, deportations peaked in Obama’s first term and Trump never caught back up to that level.

There are a couple of reasons for this. An important one is that, especially at the beginning of Obama’s term, interest in immigrating illegally to the United States was quite low. The American labor market was in the toilet, and Latin America wasn’t dealing with the overlapping crises engendered by economic collapse in Haiti, Venezuela, and Cuba that we see today. By the time Trump took office, the labor market was a lot stronger and more people were trying to get into the country. He reasonably prioritized dealing with new border crossings over interior enforcement, which brought deportation numbers down. Another reason is that the early Obama years saw significant expansion of a Bush-era program called “secure communities,” which increased collaboration between local law enforcement agencies and ICE removal operations. Trump’s election generated a thermostatic backlash against this, so the practical capacity to remove people from the interior went down.

One reason I think Trump might actually try mass deportation in a second term, though, is that Stephen Miller seems to have spent a fair amount of time thinking about these state capacity issues. That’s the point of the open-air detention camps and other flashy horrors he’s floated. At least some Trump aides recognize that there is no giant red “Mass Deportation” button on the president’s desk, and they’re thinking about how to make this work.

That said, it’s not just logistics that stayed Trump’s hand.

Even in the heyday of the secure communities policy, controversies sometimes arose when someone sympathetic was put in removals. Let’s say your parents brought you with them when you were two years old in 1995 so they could do under-the-table seasonal agricultural work. But then because of IIRIRA in 1996, they decided that if they returned to Mexico, they wouldn’t be able to get back to the US for future seasonal gigs. So they stayed. Now, it’s 2015 and you’re 22 years old, with a girlfriend and a baby and a job, but you don’t have a driver’s license. You get pulled over for driving 72 in a 60-mile-per-hour zone, but that turns into a driving without a license charge, which turns into deportation because you don’t have a green card. Now you’re being sent to a country you have no memory of for doing something that for a US citizen would merit a small fine. Your mileage may vary, but this is the kind of thing that generates anti-enforcement backlash.

And that’s a far cry from having ICE agents kicking down doors and proactively rounding people up. “I’m going to get tough on illegal immigration” is an applause line. “Your favorite restaurant is closing because they arrested the dishwashers” or “Maria who cleans your dad’s house on Tuesdays got deported and now he’s facing charges for agreeing to pay her cash without asking too many questions” is not.

Which is just to say that while I think a big federal stare down with liberal cities over sanctuary policies would probably be great political theater for Trump, almost everyone would hate mass deportation if he really tried to do it.

Draining the swamp

I thought one of the most interesting Pew results was that 58 percent support allowing illegal immigrants to legalize themselves through marriage with a US citizen. This makes sense on some level. Generally speaking, a person who marries an American citizen gets a green card. Kate’s brother married a woman from Taiwan, and now she’s a lawful permanent resident. Over the summer, I met a Canadian woman who’d been living in the United States for a while on a range of visas, but is marrying an American and becoming a permanent resident. Melania Trump’s immigrant backstory is a little unclear, but it appears she met Donald Trump while making frequent trips between Slovenia and the United States on temporary visas, but through marriage became a permanent resident and a US citizen.

It used to be that people who entered the country illegally and ended up putting down roots here could do the same thing.

My hypothetical deported dad, for example, would have gotten married to the mother of his child (probably a better outcome for everyone) and thereby regularized his status. But just as IIRIRA deterred circular migration by making it harder to cross the border, it also tried to deter illegal migration by preventing people who were in the country illegally from obtaining legal status that they would otherwise be eligible for. This idea is more controversial (at 58 percent) than the one about labor market needs (70 percent), but they’re both above water in the context of a poll showing strong support for mass deportation.

And I think across those three results, you do see something more like the 2008 version of Democrats’ immigration rhetoric. You want tougher employer-side enforcement and greater cooperation with local law enforcement. But you also want to make sure people who have family ties to US citizens are eligible for normal family unification visas. And you want to expand legal work visas so the country can continue to meet its workforce needs. In most cases, the sane thing to do is to create a way for employers to legally employ the people they are currently employing illegally, rather than kicking the current immigrant employee out and then bringing in a new immigrant to replace him.

Back to the future

I quoted the 2008 Democratic platform earlier, but I think it’s even more instructive to read the platform that Obama ran (and won) on in 2012 before things ran off the rails.

My read of the document is that it says that a relatively generous approach to the majority of people living and working in the country is smart and pragmatic:

Democrats know there is broad consensus to repair that system and strengthen our economy, and that the country urgently needs comprehensive immigration reform that brings undocumented immigrants out of the shadows and requires them to get right with the law, learn English, and pay taxes in order to get on a path to earn citizenship. We need an immigration reform that creates a system for allocating visas that meets our economic needs, keeps families together, and enforces the law. But instead of promoting the national interest, Republicans have blocked immigration reform in Congress and used the issue as a political wedge.

Despite the obstacles, President Obama has made important progress in implementing immigration policies that reward hard work and demand personal responsibility. Today, the Southwest border is more secure than at any time in the past 20 years. Unlawful crossings are at a 40-year low, and the Border Patrol is better staffed than at any time in its history. We are continuing to work to hold employers accountable for whom they hire. The Department of Homeland Security is prioritizing the deportation of criminals who endanger our communities over the deportation of immigrants who do not pose a threat, such as children who came here through no fault of their own and are pursuing an education.

Over the next 10 years, a bunch of things happened — the near-passage but ultimate failure of the Gang of 8 bill, the 2014 midterms, the surge of unaccompanied minors making asylum claims, the Michael Brown protests, the 2016 Democratic Party primary, Donald Trump’s election, adult asylum claims overwhelming the system, Covid, George Floyd, and the post-pandemic hot labor market — that pushed Democrats to adopt a different, and untenable, view. Immigration enforcement became per se bad, or else the procedural rights of asylum claimants had to take priority over any pragmatic calculus.

That line of thinking was a dead end, and for the past 12-18 months, Democrats have been beating a retreat.

But I think that leaves us roughly where we were 12 years ago. If you can start with a secure border, you’re still left with this large legacy population of illicit workers and a much smaller legacy population of people who are in the country illegally and also committing crimes. It would be smart to crack down on illicit work, because that’s what will keep the border secure over the longer term. But we should minimize the economic cost of that by creating a system whereby people who are already living and working here illegally can clear background checks, pay taxes, and work legally. Then we’re left with a much smaller population of less sympathetic people to be targeted for removal. And you can try to create new pathways for legal immigration that are ideally both wider and more selective than the ones we’re using now.

It’s hard to imagine getting there from here. But it still makes sense, and it’s still broadly in line with the public’s views.