No one doubts that Donald Trump’s approach to immigration is two parts bombast, two parts cruelty and two parts fear. Other than a general antagonism to immigration, illegal or legal, from non-Nordic countries, he offers no serious or comprehensive plan to solve the real and continuing problems at our borders. Unfortunately, many Democrats have largely given up on any effort to do so either. This wasn’t always so. In 2013, for example, the Democrats worked with moderate Republicans on a bipartisan comprehensive plan to reform immigration. Back then, it was the House Republican leadership that blocked the plan, refusing to bring it to a vote after it had passed in the Senate—seemingly to avoid giving a win to President Barack Obama. Now it’s the Democrats whose approach is apparently that if Trump is for something, they are against it.
They forget that for many Americans, immigration was one of the top two issues in the 2018 election. In a recent Quinnipiac poll, support for building Trump’s wall was 49-49 among voters over 35. (In other polls, those who wanted a mix of electronic and physical barriers was even higher.) Many of these voters view immigration policy and the need for a wall as reflections of severe cultural and economic crises. Their fears of so-called unrestricted immigration feed their support for Trump.
The Democrats ignore these realities at their peril. To appeal to these Trump voters, they need, as David Ignatius has written, to make clear “that not every…immigrant who wants to come to America can do so.” Only when they have had a Sister Souljah moment in this regard—and admitted the need for immigration limits—can they go on to develop a more humane and forward-looking immigration policy.
What might such a policy look like? Here are a few points it should at least address.
Some people need to stay.
The past is past, and however it came about, we have to live with it. The 10.7 million people now in the United States illegally cannot be repatriated without causing severe economic dislocation and violence to our American values. The same is true of holders of the Temporary Immigration Permits (TPS) issued many years ago to victims of the Haitian earthquake and those fleeing wars in “failed states” such as Nicaragua, El Salvador and Sudan (about 200,000 in all).
As for the “Dreamers” who have grown up here, it is totally dysfunctional to send them back. But the Republican base concern about “jumping the queue” cannot be completely ignored. A possible compromise solution might be a path to green card status, but to citizenship only in special cases. Such a compromise might also have to stipulate that Dreamers, whether citizens or legal aliens, cannot then turn around and demand family reunification for additional relatives.
Not everyone gets to come.
Democrats should—and some do—acknowledge Trump’s point that a sovereign nation needs to control its borders, though his means are fanciful and not up to the task. This means jettisoning the fantasy of a physical border wall (whether paid for by Mexico or not) for a coordinated program of electronic surveillance, border police, fencing and drones.
Trump’s obsession with the southern border carries an inescapable implication of racism toward Hispanics. However, immigration reform supporters have likewise largely ignored the significant numbers of visa overstayers from Canada, those who arrive by plane from Asia or Europe and foreign students who fade into the woodwork after they graduate.
So who should be allowed in? Instead of cutting legal immigration, as Trump has proposed, we may want to skew it toward giving “points” for merit—as do Australia and other countries—particularly for H1B visas that allow employers to bring specialists into the U.S. to work. While immigration should not be limited to the rich and learned (think how many unskilled immigrants came with only an entrepreneurial spirit and built up tremendous businesses), we should seek out those with skills we want.
Somebody has to enforce the rules.
A substantive forward-looking immigration plan will be serious about prosecuting employers for hiring illegals. Pressure on employers may be the best way to drain this particular swamp. And while Democrats decry troops on the border, few are willing to propose alternatives such as sending more judges there. Nor have they thought through the problems caused by inconsistency or lack of experience among immigration judges. One solution may be to create a separate immigration court or to turn immigration appeals over to the Federal Circuit. This may not satisfy immigration lawyers who can find benefit in judicial inconsistency, but it will provide more-prompt adjudication.
The foolish goal of abolishing the Immigration and Customs Enforcement (ICE) agency voiced by some progressive Democrats is yet one more example of “anything goes” as a substitute for policy. Unless we opt for open borders, we need an agency like ICE. Indeed, when Republicans sponsored a “We love ICE” resolution, only a minority of Democrats voted against it. One can re-envision, reorganize or reform ICE, but the idea of closing down an agency whose mission is to control our borders is ridiculous, and the Democrats know it. The goal should be to change its culture.
No one can deny that Trump’s apparent cruelty towards refugees, the heartbreaking photographs of children torn from their mothers at the border, the seeming nonchalance of not tracking separated children and parents, expose a policy that is not only heartless but feckless. But if Democrats oppose these policies piecemeal without doing the hard work of offering a comprehensive immigration policy—or understanding that such a policy means many migrants will not, in fact, be allowed entry—they will lose a great opportunity for themselves and for the country. The mistakes of the past are no reason to codify those mistakes for the future.
Marshall Breger is a law professor at Catholic University