The case for the immigration deal

Trump killed a win-win proposal and we will regret it

Now that the compromise border security bill negotiated primarily by senators James Lankford and Chris Murphy is dead, I want to talk about what was in it and why I think it was a good bill.

But I want to start with something completely different.

Roughly a decade ago, I was interested in GOP Representative Darryl Issa’s SKILLS Visa Act, which would have created more green cards for high-tech workers to come to the United States. I poked around and found out that while Democrats in congress weren’t against Issa’s idea, they were against the SKILLS Act qua legislation. That’s because they were working on comprehensive immigration reform, a kind of grand bargain that would feature new measures to deter illegal immigration plus a path to citizenship for a large fraction of people who’d been living and working in the country illegally for many years. Part of the legislative strategy for comprehensive immigration reform was to be against any immigration measure that wasn’t comprehensive immigration reform. If you had an idea — like Issa’s — you were supposed to get into the negotiating mix, attach your idea to the big CIR package, and be a team player.

This almost worked.

The “Gang of 8” CIR bill that came together after Obama’s reelection easily overcame the senate’s filibuster threshold. And in part due to the support of Republicans like Issa, everyone thought that it had the votes needed to pass the House. But it fell victim to party cartel dynamics. Most House members supported the bill, but most House members were Republicans, and most Republicans opposed the bill, so John Boehner didn’t bring it to the floor.

After Biden won in 2020, but before the Georgia special elections, I was talking to a staffer for a Democratic Party legislative leader about what I was assuming would likely be a situation of divided government. I asked if Democrats would be open to piecemeal immigration changes under the altered political circumstances, and he said it would depend on what the immigration advocacy groups decided. And it turns out that the groups did not change their view: Immigration reform, they thought, should be tackled comprehensively.

All that backstory has, I think, been forgotten when it comes to evaluating the Lankford-Murphy proposal.

I’ve seen this proposal wildly mischaracterized in right-wing media as an open borders plan or something that accomplishes nothing useful when, in fact, it would accomplish a lot to make the border more secure and the asylum process more orderly. But I’ve also seen it mischaracterized in progressive media as some kind of huge sellout to the right, and a wildly conservative step.

The actual large concession that Murphy made in negotiating this deal, though, isn’t about the substance of immigration policy — it’s about the groups’ desire for comprehensiveness. This is a non-comprehensive immigration proposal designed to address a discrete set of problems rather than using those problems as leverage to address other problems. And from Lankford’s side, the concession is to actually try and address the problem rather than just whine and complain about Joe Biden. Which is to say that to the limited extent you can set the politics aside, this is a good bill that would have improved the asylum process.

The asylum status quo is bad

Imagine an asylum system that worked like this:

• Sometimes a person shows up without a visa and says “hey I need asylum!”

• This person is detained in a humane way for a short time as his claim is assessed.

• A judgment is made in a reasonable time frame, and this person is either deported or granted asylum with permit to work.

That system would be pretty generous to people with legitimate asylum claims, but unappealing to people with dubious asylum claims. Nobody wants to spend their money or risk their life just to sit in an American detention facility for several months before being deported. Of course, some people still might make spurious asylum claims or be genuinely misinformed about which claims are likely to prevail, but in general, this system offers little incentive to make a claim unless it’s a strong one.

But now suppose something happens to tilt the system — a huge catastrophe in a neighboring country leads to both a large increase in legitimate claims and an increased level of desperation on the part of people with borderline claims. Now, the system is overwhelmed and not everyone can be detained; a lot of people are sent on their way with orders to show up in court later. What’s more, the volume of claims is so large that it gets harder to process the backlog of cases. Because of the longer backlog, the detention capacity is further overwhelmed and a much larger share of new arrivals are released with future court dates. This slightly changes the calculus and makes showing up with a borderline claim more appealing. So more people show up, and the system gets even more overwhelmed. At a certain point, almost anyone who wants to come to the United States and work under the table can make an asylum claim to avert or at least delay deportation.

This is an undesirable situation. Among other issues, it is extremely unfair to people with legitimate asylum claims. It also doesn’t really move the ball on any of the goals progressives were trying to advance back in 2013.

At the time, Obama said things like “all of us take offense to anyone who reaps the rewards of living in America without taking on the responsibilities of living in America,” and when he initially asked congress for help in dealing with the influx of unaccompanied minors in 2014, he argued that with more money, he could deport people more quickly. There was a meaningful immigration policy debate at the time centered on DACA and the Dream Act, but Obama was clear that he wanted to deport people making dubious asylum claims as quickly as possible.

So the compromise bill tried to address this now-not-so-new issue. That starts with what both the Biden administration, and previously Obama administration, said they needed: more resources to detain asylum claimants humanely and process their claims. But it also shifts the process away from the DOJ-run immigration courts, into the hands of DHS asylum officers, while simultaneously limiting the scope of appeals. The idea is to move much more quickly with the goal of turning a vicious cycle into a virtuous one — adjudicating claims faster reduces the incentive to make bogus claims, so the total volume of claims declines, so it becomes easier to adjudicate faster.

The bill also makes an important legal change to the process. Right now, asylum screening has two steps. The first quick cut is passing a “credible fear” screening. If you do that, then you get to make an application for asylum. The idea of credible fear is that the bar should be lower than the bar for asylum, a way to more quickly weed out the cases that most obviously won’t be granted asylum. But right now, only about 20 percent of the people who pass a credible fear screening end up getting asylum. Back in 2014, Obama’s homeland security secretary called on congress to change this. It didn’t happen because the issue was tied up in larger political disputes.

In the bipartisan compromise, we had people actually trying to address the asylum issue on its own terms so the change gets made.

The big backstop

The optimistic view is that this works. Fewer people pass the credible fear screening, so right away the incentive to make a dubious claim goes down and fewer people are arriving. At the same time, resources are ramping up and the remaining claims are getting processed faster. The incentives keep shifting to deter people without unsound claims. Next thing you know, we are on top of the process and the pre-2014 situation is restored. It’s a great success story and everyone is happy.

That being said, the narrative in right-wing media isn’t that the Biden administration is struggling with an over-capacity asylum system, it’s that they welcome the influx.

I don’t believe that’s true, but many conservatives do. And if it were true, then there’d be no guarantee that additional resources would really help. So the Republican negotiators won a couple of important additional concessions as backstops. One is a rule that requires the federal government to start summarily rejecting all asylum applications if border crossings exceed 5,000 per day for a week. Dishonest people characterized this as the bill “allowing in” up to 5,000 people per day, which is not the case. What the bill say is that if too many people are trying to make asylum claims, the entire asylum system will automatically shut down.

On the merits, that should help DHS regain control of the situation during a transitional phase when new resources are coming online and new processes are being stood up.

On the politics, it’s a show of good faith by the administration — and something Republicans can point to as a sign that they aren’t just taking Joe Biden’s word for it.

It’s also a genuine conceptual break with the immigration lawyers’ lobby. The lawyers’ view is that the procedural rights of people with valid asylum claims should be the sticking point. With the 5,000/day rule, the sticking point is instead that we need the system to be under control. If it gets out of control, asylum shuts down. Over and above that, the bill would also restrict the president’s discretion to grant parole status to people who arrive at the southern border — another backstop that serves as a guarantee of Biden’s good faith.

There were also some side deals

The package also includes a few things that I think of more as side deals than as the core of the legislation. This bill is very much not “comprehensive immigration reform,” but it does address a few other immigration-related issues.

One is the Afghan Adjustment Act, which would grant permanent legal status to Afghan interpreters and others who worked with the American military over the last 20 years and were paroled into the country after the fall of Kabul. It’s not entirely clear what Donald Trump intends to do with those people, but the fear is that he’d try to kick them out. And even if not, it’s much better to have actual green cards than to be left in limbo. The bill also includes some streamlining of the process whereby immigrants serving in the military can become American citizens, some additional legal immigrant visas, and a guarantee that kids facing deportation proceedings will have legal counsel.

On the flip side there are several expansions of expedited removal powers that a future, more restrictionist president might use, even if they would have little application to the asylum system. None of this is particularly vital to the bill, but it was in there as sweeteners to get particular people on board.

A prudent compromise

I’m a Joe Biden voter, and I’ve spent most of this post making the case to Democrats for why this is a deal worth doing, and not a huge betrayal of sacred progressive principles.

But the proximate obstacle to the bill passing is objections from House Republicans — objections that I believe to be overwhelmingly cynical and motivated by a desire to hurt Biden politically rather than by objections to the bill on the merits. Trump said he wanted the GOP to block the bill to help him politically, and that’s what they’re doing. But ever since he said that, savvier politicians than Trump have come out of the woodwork to offer objections on the merits, and I worry that by making the case for the bill to Democrats, I only bolster the argument against it for Republicans.

This is, unfortunately, what makes bipartisan deals hard to sell — if it’s good for progressives, it’s bad for conservatives (and vice versa), so the deal doesn’t get done.

So I want to conclude by arguing that conservatives should see that Democrats have made real concessions here, precisely because “the border” is clearly a point of political vulnerability for Biden. If a future GOP president wants to get similar amounts of money spent and similar legal changes enacted, Democrats are going to demand a higher price in terms of legalization.

Trump isn’t going to want to pay that price; here’s what he’s going to do instead.

Back in his first term, Trump claimed that Section 212(f) of the Immigration and Naturalization Act gave him the authority to basically shut down all asylum processing. He lost court cases about this, but that was in part due to plaintiffs finding the most favorable possible venue. If he regains the Presidency, he will try this again, and he will be sued and lose again. And this time around, by starting the process earlier in his presidency, he will have the opportunity to take it to the Supreme Court, which is more conservative than the 9th Circuit, and he may well win there. But even if he wins, it will take a while. Beyond that, though, an order to apprehend and deport everyone is not magic. He will need actual enforcement resources, resources that will require bipartisan cooperation to secure and that will be mixed up with his much-more-controversial immigration ideas, like stepping up interior enforcement. Stephen Miller’s plan to build massive detention camps is going to run into a lot of banal procedural obstacles, just like any other large-scale construction project, except with opposition supercharged by polarization and thermostatic backlash to an awfully fascism-adjacent program.

Safe-seat Democrats who would back a tough border deal for the sake of helping out Joe Biden politically are not going to pony up money for this, and every inch of the program will have dubious legal basis without new legislation. We’d ultimately end up back in a bipartisan bargaining dynamic, but one in which Republicans will hold less leverage, not more, if they win the election.

I’ve talked a bunch in this article about the Obama-era push for a bipartisan immigration deal, but I’ve been thinking lately about the collapse of Bush-era efforts at another version of comprehensive reform.

After it fell apart, I remember an influential progressive telling me it was for the best because Democrats would likely win big in 2008 and be able to write a better bill. Well, they did win big in 2008, but we didn’t get a better bill. In all that time, progressives haven’t managed to secure our key demand — a path to citizenship for millions of people who’ve been living and working in this country and are integrated into our communities. But at the same time, the thing conservatives worry about — irregular migration and lack of control at the border — has only gotten worse. It’s better to get the deals done when you can, and I think we will all live to regret Trump’s wrecking of this one.