IDEASPACE® CRIB SHEET
December 3, 2020 – By Rick Taft, DW Gibson, Jordan Heller
This Ideaspace® Crib Sheet on U.S. Immigration Policy describes potential actions in the immigration realm that we believe deserve attention for one of three reasons:
1) They can be taken by Executive Action; or
2) They require Legislative Action, seek to Improve the Current System and already enjoy some elements of bipartisan support; or
3) They require Legislative Action, seek to Transform the System and aspire to bipartisan support.
1) EXECUTIVE ACTION
Much of immigration policy can be affected by just one branch of government acting on its own: the Executive. Executive action — which includes orders, determinations, memoranda, proclamations and notices — can have significant effects on society. With regard to immigration policy alone, the Trump administration made more than 400 policy changes through executive action; many of these changes garnered little or no media attention, but have had significant effects on the country. President-elect Biden has already indicated that his administration will take swift executive action on immigration policy, and he’ll likely begin with reversals on some of the more high-profile Trump administration moves. The list below is illustrative, not exhaustive.
— Stop Border Wall Construction
President-elect Joe Biden has said he will immediately stop all border wall construction. Contracts have already been awarded for future work to be completed so there will be legal complications in terms of how to terminate each of those contracts. Biden has indicated he does not plan to tear down any portion of the wall erected by the Trump administration, but pressure to do so will remain from environmental groups, native populations, and local border communities who have had their waterways and land negatively affected.
— Ending “Zero Tolerance Policy”
This policy, which led to the high-profile family separations at our border with Mexico, will be shelved. This means it is more likely that families who cross into the U.S. together will be able to stay together and avoid lengthy detentions while their cases play out in immigration court. Avoiding family separations altogether will require something other than a return to Obama-era policies, which saw family separations occur through the deportation process, albeit on a smaller scale.
— Extending DACA Protections
DACA is a policy enacted through executive order by the Obama administration that allows certain individuals who were unlawful residents before their 16th birthday to receive a renewable two-year period of “deferred action” from deportation. A June 2020 Supreme Court ruling that prevented President Trump from ending DACA, as well as a more recent November federal district court ruling invalidating Acting Homeland Security Secretary Chad Wolf’s restrictive rules for DACA enrollees, will help the incoming Biden administration’s efforts to extend protections granted by the program. Legislation, colloquially known as the DREAM Act, that would make these protections permanent has faltered a few times in Congress, most recently in 2013.
— Repealing the Travel Ban
One of President Trump’s earliest high-profile executive orders was to restrict access to visas for those wishing to visit the U.S. from several predominantly Muslim countries. Biden is expected to reverse this ban during his first 100 days in office.
— Raise the Cap on Refugees
The Trump administration set the annual cap on refugees admitted into the country to a historic low of 15,000 — and actually admitted far fewer. The incoming Biden administration has indicated it would like to return the cap to a pre-Trump level in the neighborhood of 125,000 refugees per year. However, doing so will require more executive work than a signed document, as the nonprofit infrastructure that had facilitated much of the refugee resettlement work has been largely dismantled as a result of Trump administration policies.
— Ending the Migration Protection Program
The Trump administration policy known as “Remain in Mexico” forces those who seek asylum in the U.S. at our southern border to complete the application process in Mexico. President-elect Biden has indicated he will reverse this policy, but doing so will require significant action beyond signing a new executive order. There are approximately 24,500 people currently enrolled in the program and a system would have to be created to determine in an orderly fashion which of them will be granted asylum.
— Family Reunification
Currently there are more than 600 documented cases of children who were separated at the border from families that have yet to be reunited. President-elect Biden has promised to set up a commission to take up the task of reuniting these families.
— Deportation “Freeze”
President-elect Biden has indicated he would like to put a temporary “freeze” on deportations so that new standards and priorities can be set. How such a freeze would be carried out once an executive order is signed remains unclear, as thousands of immigrants are already at various points in the deportation process.
— New Guidance to ICE (Immigration and Customs Enforcement)
The Biden administration’s core directives to ICE are likely to resemble those issued during the Obama era: prioritize the removal of undocumented immigrants with serious criminal records and do not pursue “collateral arrests” during EROs (enforcement and removal operations). However, the Obama administration had a raft of exceptions that did, in fact, make “collateral arrests” possible; a big question is whether or not the Biden administration will keep the fine print, so to speak, and allow similar exceptions. Deportations reached historic highs under the Obama administration and it appears likely that the Biden administration will hold deportations to a lower level given the strength of the progressive wing of the Democratic Party.
2) LEGISLATIVE ACTION — IMPROVE THE CURRENT SYSTEM
— Hiring More Immigration Judges
There is currently a backlog of more than 1 million cases in the country’s immigration courts. The consequent delays in resolving time-critical cases constitute an embarrassing failure of American justice. Republicans and Democrats have both argued for increased funding to hire more judges for a system that is manifestly breaking down. Like the idea of a regional processing center for asylum seekers (see below), hiring additional immigration judges can draw support from both parties for widely differing reasons. On the flipside, legislation to add judges can be easily derailed if it is burdened by peripheral measures that serve divergent political agendas. The scene is set for a well-crafted bipartisan effort to address this core need.
— Regional Processing Center for Asylum Seekers
Many voices on the right endorse the idea of requiring asylum-seekers to complete the application process outside of the U.S. This was the stated purpose of the Trump administration’s “Remain in Mexico” policy, and it met virtually no resistance within the Republican Party. Less well-known is the Obama administration’s pilot program for a regional processing center for asylum-seekers that would be located in some reasonably safe place in Central America. This innovation, which was championed by some activists on the left, aimed to eliminate the need for a risky journey to the U.S. to begin the asylum application process. While these two programs are diametric opposites in their tone and genesis, the effect of each is the same: the application process happens outside the U.S. Together they demonstrate that a shared outcome can attract diverse support because it does not require a shared motivation.
— Strengthen Labor Law Enforcement
The U.S. Department of Labor mandate is so broad — it administers 180 federal labor laws (the Fair Labor Standards Act being a good example) — that uneven enforcement of those laws is inevitable. Lawmakers as diverse as Bernie Sanders and Steve King and leading academics have asserted that stronger enforcement of key labor laws would carry out statutory purposes and protect native-born workers. Those on the left argue that such labor law enforcement would also benefit immigrant workers by protecting everyone from exploitation and achieving fairer compensation for all. Bipartisan support for stronger enforcement of key labor laws could help lay a foundation for broader immigration reform, either as part of a comprehensive bill or as a stand-alone measure that builds goodwill and enhances the possibility of follow-up legislation.
Labor laws protect workers in general and regulate their representation by unions. Outside this category fall more targeted programs designed to support border security and prevent those who are not legally in the country from finding employment. E-Verify, for instance, is a federal program that tightens the verification process for documents submitted to show eligibility for employment; it is administered by the Department of Homeland Security and the Social Security Administration rather than the Department of Labor. Optimizing the size and nature of targeted programs like E-Verify is a legitimate goal, but it has a more limited focus than strengthening enforcement of general labor laws.
— Stabilization of the Northern Triangle (Guatemala, Honduras and El Salvador)
There is widespread agreement that long-term immigration issues for the United States cannot be solved unless the Northern Triangle countries are able to provide more internal stability, safety, and economic opportunity for their citizens. Reauthorizing U.S. foreign aid, which was cut by the Trump administration, is an obvious starting point, but some on both sides of the aisle call for a more comprehensive and nuanced approach. An effective plan for engaging the region must heed lessons from the past: the U.S. needs to tamp down violence and encourage democratic autonomy in the struggling Triangle countries while avoiding heavy involvement in their domestic politics.
— Modern Border Security
In the post-9/11 world there has been enduring bipartisan support for border security, viewing it as a national security issue. This broad support has been rattled by Donald Trump’s fixation on building a continuous wall on our southern border. Though Bernie Sanders and Joe Biden both voted for the Secure the Border Act of 2006 (which authorized nearly 700 miles of barrier construction), one cannot imagine them doing so in a post-Trump world. Republicans continue to emphasize border security when it comes to immigration issues and, as Charles Kamasaki has pointed out, even those on the left generally acknowledge that there has to be a reasonable security apparatus in place. If that’s the case, Congress needs to consider what that security apparatus should be in the 21st century. New technologies suggest solutions that move the focus away from building barriers and hiring more agents.
3) LEGISLATIVE ACTION — TRANSFORM THE SYSTEM
— Department of Immigration and Department of Rural Affairs
Paths for legal immigration are administered by a scattered array of government agencies under a hodgepodge of hundreds of visa categories patched together over decades. The decisions made in this confusing realm affect millions of lives every year and shape the destiny of our nation, yet the analytical, decisional and administrative resources devoted to the task seem poorly organized and insufficient, even paltry in light of the consequences. This situation calls out for a more coherent and well-focused administrative structure. The idea of a federal department to handle legal immigration has surfaced. There is good reason to believe it is an idea whose time has come.
A Department of Immigration responsible for all matters relating to legal immigration would increase efficiency in dealing with the multitude of programs and encourage a more comprehensive and deeply informed vision of the number and characteristics of the people we let into the country. A cabinet-level department can better compete for resources and recognition adequate to the complexity of the immigration system and the annual need to adjust many thresholds and caps.
The idea of a Department of Immigration can be justified on nonpartisan good government principles, but if it stands alone it carries a risk of being seen as pro-immigrant and pro-Democratic in an era when anti-immigrant feelings are widespread, especially in rural areas that are strongly Republican. One solution to this political imbalance would be to pair the creation of a Department of Immigration with the creation of a Department of Rural Affairs.
Even a glance at the 2020 red-blue voting pattern of counties in the United States makes clear that vast swaths of rural America are solidly Republican and intensely moved by the positions and rhetoric of Donald Trump. A core message of President Trump is that the federal government is not paying good attention to a rural America that is suffering economically and demographically. What would good attention to rural America look like? There is a Department of Housing and Urban Development that addresses the needs of the nation’s cities. Where is the department that addresses rural needs? FDR fought for rural electrification. Does the federal government fight in a comparable way today to enhance rural access to broadband? What about rural needs for more reliable and accessible health care? When the cabinet meets in Washington, agriculture is well-represented by the Department of Agriculture, but where is a cabinet-level Secretary with a well-focused rural portfolio when health, education, housing, climate impact, and job creation are in play?
The United States presidential Cabinet is already a bulky affair. It includes the Vice President and the heads of the 15 executive departments, plus a clutch of other senior officials (currently numbering 7 — examples being the White House Chief of Staff and the Director of National Intelligence). A cabinet of this scale is ordinary for a large modern nation. It reflects the scale and complexity of the nation itself and the need for a high-powered, high-prestige array of management talent immediately under the chief executive. (Canada, for instance, has a cabinet of 35 members who represent many ministries, including one focused on immigration and one on rural development.) Historically the U.S. Cabinet has grown and evolved to meet the emerging challenges of nationhood. The premise of the idea developed here is that it is time for our country’s list of executive departments to evolve once again. New Departments of Immigration and of Rural Affairs would reorganize and reimagine their respective domains. Each department would draw in existing agencies where appropriate and break new ground as needed. The logic of adding these Cabinet-level departments is compelling: immigration directly and substantially affects our national destiny and rural well-being has become a critical issue, poorly understood and poorly attended to.
— Point System
Use of a point system to help administer legal immigration has broad bipartisan -— even international — appeal. It invites deeper analysis of overall immigration objectives as a backdrop for evaluation of individual applications. The challenge of a point system is that it requires the federal government to precisely establish a value system that can be applied to everyone who wants to come into the country. How many points is a person’s education or manual skill level worth? How about artistic ability or ethnicity? It is easy to see how ideologies, political interests, and linguistic issues could make it hard to answer questions like these, but the benefits may justify the investment. An effective point system could meaningfully inform both choices on individual applications and large-scale political decisions on immigration goals. The system could, for instance, take account at the macro level of labor market shortfalls or refugee surges in armed conflicts. Also the point values need not be fixed. They can and should be revisited on a regular basis (e.g., at 2- to 4- year intervals) so that they are responsive to ever-shifting economic, cultural, and social conditions.
— A Grand Bargain
This idea differs from all those presented so far in this Crib Sheet. Each of the preceding ideas addresses a specific proposal; by contrast this one addresses a “grand” bargaining process that is likely to involve to some degree every preceding topic.
“Grand Bargain” refers to a long-held dream of U.S. politics: bipartisan legislation that (i) deals fairly with the more than 11 million people who reside in our midst without the legal right to be here and (ii) takes effective steps to optimize the size and nature of legal immigration and keep the number of undocumented immigrants from ballooning again. The Grand Bargain has behaved like a desert mirage for years, largely because the 1986 version of such a bargain (IRCA — the Immigration Reform and Control Act) has been viewed by many conservatives as a failure, indeed, perhaps a willful failure on the liberal side. In this view, the “amnesty” side of the 1986 bargain took immediate effect but the “immigration control” side of the bargain, which required long-term vigilance and ample resources, petered out over time.
Measures such as those described in Sections 1 and 2 of this Crib Sheet have the potential to gradually improve our immigration system and reduce its present tensions, but the deepest source of tension will remain until we find a way to deal sensibly with the undocumented population. Even if one party gains control of both houses of Congress and the presidency, some degree of bipartisan support will remain critical to national acceptance of any “sensible deal” that addresses in a fundamental way the conundrum of the undocumented population and the forces that contributed to its growth. Given the need for such bipartisan support, a Grand Bargain will continue to hold allure no matter how stressed its history may be. (Consider how Mark Krikorian uses the concept in Ideaspace Interview No. 1.)
With a mixture of insight, cleverness and good will that does not exceed what our nation and its elected representatives can muster, a transformative Grand Bargain is not out of reach, though it may well require a precursor foundation of incremental bipartisan measures that “improve the system” and build congressional confidence in its ability to compromise. Consider the following ideas (some of which show up earlier in this Crib Sheet) that might contribute to a successful legislative process that could slowly bring such a Bargain to life:
- The fundamental problem of those who are undocumented is lack of legal status. While most of them presumably desire a pathway to citizenship, attainment of legality would dissolve the worst aspect of their present situation.
- Amnesty has become a charged concept. A full suite of measures that help address the undocumented population and more nuanced terminology would contribute to a more productive national conversation.
- Those who are here, particularly those who have been here for years, need more attention than those who would like to come in the future. Some measure of acceptance of those who are working here now may be a realistic starting point for law enforcement practices that make it harder for future immigrants without proper documentation to gain work. Some diminution in the size of legal immigration may play a politically potent role in securing more congenial treatment of the undocumented population.
- Temporary rights to visit without the right to work can be granted with generosity (for instance, to relatives of U.S. citizens or residents who are not immediate family members) if the visa terms are realistic and buttressed with meaningful enforcement.
- The DACA population elicits understandable political sympathy and is a good candidate for special treatment in any plan to rationalize our existing situation. It also illustrates the potential value of segmenting the undocumented population in a realistic and equitable way as a starting point for differentiated treatment. This point has drawn bipartisan support more than once with different iterations of the DREAM Act.
- A new Department of Immigration would be well-positioned to attract a surge of new resources for the ongoing data assembly and analysis that would help Congress and the nation understand perplexing aspects of our current immigration system. Topics that merit such enhanced scrutiny are often tightly interwoven. For instance, understanding the economic forces that support widespread employment of undocumented workers ties closely to the annual need to determine optimal legal immigration size and set thresholds and caps for visa and asylum programs. Also, it would make good sense for such a Department to carry out in conjunction with other departments (Homeland Security, State, Defense, Labor, Commerce, Agriculture) ongoing multi-factor analysis of what drives people to permanently leave their homelands and what degree of success they are finding in the United States.
- There are many ways to adjust the tools we have to discourage unwanted crossings of our borders while maintaining humane practices of which we can be proud. Intense investment in prompt and fair adjudication in our immigration courts will ripple beneficially throughout the immigration management system.