President Trump is setting in motion Tuesday the worst defeat for the immigration-control cause since President George H.W. Bush signed into law the 1990 Immigration Act, doubling U.S. immigration quotas. But while the elder Bush understood what he was doing, Trump does not. The 1990 law operated precisely as its authors intended and expected. Today’s immigration actions will produce results almost directly opposite of those advertised. It will lead to more and larger amnesties in the future, and then to larger and less-controlled immigration flows after that.
President Obama issued the order known as DACA (“deferred action on childhood arrivals”) in 2012 after failing to achieve his hopes of a broader amnesty. Obama himself had repeatedly denounced the concept as beyond presidential power. To quote only one example, from July 2010:
There are those in the immigrants’ rights community who have argued passionately that we should simply provide those who are [here] illegally with legal status, or at least ignore the laws on the books and put an end to deportation until we have better laws ... I believe such an indiscriminate approach would be both unwise and unfair. It would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision. And this could lead to a surge in more illegal immigration. And it would also ignore the millions of people around the world who are waiting in line to come here legally. Ultimately, our nation, like all nations, has the right and obligation to control its borders and set laws for residency and citizenship. And no matter how decent they are, no matter their reasons, the 11 million who broke these laws should be held accountable.
Back when he made those remarks, Obama was hoping to pass a statute, the "Dream Act,” that would fully legalize the people ultimately protected by DACA. But the Dream Act stalled in the new Republican Congress elected in November 2010. Negotiations with Republican leaders to produce a more comprehensive immigration reform failed.
Latino enthusiasm for Obama had faltered through his first term, a casualty of the slow economic recovery. Failure to produce some kind of immigration deal might well jeopardize his re-election. (In the end, Hispanic voter turnout dropped between 2008 and 2012, from 49.9 percent to 48 percent.)
And so in July 2012, Obama reversed himself. He would push through a variant of the Dream Act by executive authority alone. The first draft of DACA conferred work and residency rights on illegal aliens under age 30, provided they had entered the United States before their 16th birthdays. Provided they met certain basic schooling requirements and avoided criminal convictions for felonies or major misdemeanors, they would be issued two-year work permits, indefinitely renewable.
DACA immediately generated two obvious problems:
- Problem 1: What about the families of DACA beneficiaries? One of the major themes of immigration advocates is that families must remain united, and united always on the U.S. side of the border. In many families of unauthorized immigrants, one child might qualify for DACA while his elder siblings and parents would not.
- Problem 2: DACA created some obvious incentives for those under 16 to race to enter the United States. Even though the program only extended to those who could document their continuous residence in the country from June 2007, it may have encouraged more recent arrivals to fabricate such documentation, and signaled to those not yet in the country that they might reasonably hope to be included in the program in the future.
In the summer of 2014, tens of thousands of unaccompanied minors from Central America rushed the U.S. border, the crest of a wave that began in 2008. Attorney General Sessions today blamed DACA for the surge. Some academic experts strongly dissent, pointing to other factors—but the risk of incentivizing more migration by minors in the future overhangs the DACA debate. The “what about the parents” problem did prod Obama to unveil an even broader executive action program in November 2014: Deferred Action for Parents of Americans, that extended DACA protections to the families of those who qualified for the earlier program.
The courts ultimately struck down DAPA; DACA survived. And so, here we are.
DACA’s flaws—incentives for more illegal migration; greater uncertainty about family status—remain. Yet real as they are, they are not the most pressing flaws in the flawed U.S. immigration system.
More urgent are:
- The continuing lack of meaningful enforcement at the workplace.
- The continuing slowness and ineffectuality of removal of even criminal aliens
- The strange priorities of legal immigration: Adult siblings of citizens take precedence over spouses of permanent residents; relatives of all kinds are overweighted compared to the people most needed by U.S. firms and universities
- The utter lack of any plan for overall numbers: Today’s quotas for lawful immigration were bequeathed nearly three decades ago—meanwhile stagnating wages for the lower 90 percent of the workforce suggest that the United States is suffering from the most severe labor glut since the Great Depression
People who are serious about immigration have identified all of these as top priorities. Senator Tom Cotton’s “RAISE” bill addresses them. The hope always was that regularization of DACA beneficiaries would become part of a larger package that would tighten enforcement, cut overall intake, and rebalance the lawful flow away from family chain migration and toward ultra-skilled workers and researchers.
But Donald Trump’s interest in immigration is fixed on one big object: finding a way to honor his promise to build a Great Wall of America along the Mexican border.
The truth is that border barriers can play an important role. The 1990s-vintage fencing between San Diego and Tijuana cut illegal migration at that crossing point. But there are hundreds of miles of Mexico-Texas border that get almost no traffic even unfenced—and where concerns over private property, the environment, and plain value-for-money make a physical wall a ludicrously pointless notion.
But Trump, himself a notorious employer of cheap foreign labor on his building sites and at his Mar-a-Lago resort, has never been interested in immigration as an issue, only as a means to mobilize political emotion. And so he now seems to have fastened on the concept of trading some update of the Dream Act to secure Democratic votes for the Trump Wall.
As so often, he did not think it through. Democrats have no incentive to make his deal—and every incentive to thwart it. If Santa asked Minority Leaders Nancy Pelosi and Chuck Schumer what they would like most for Christmas this year (Trump is president now, so we can say the word “Christmas” again), they might reply: “Some spectacular deportations of people brought to the United States sometime during the 2018 congressional cycle would be perfect.” Trump’s call on Congress to do something—who knows or cares what?—about DACA by spring of 2018 is a formula to unite Democrats, split Republicans, and achieve nothing. It puts the immigration spotlight on precisely the GOP coalition’s weakest point, in the misplaced hope of getting ungettable votes for the GOP’s dumbest idea.
The right course was to make a priority of the RAISE Act—and to include legalization of the DACA beneficiaries as a subprovision within RAISE. That would be a heavy enough lift, since not all Republicans support RAISE, and since the party’s biggest and most influential donors almost unanimously oppose it. But if a difficult plan, it would be at least a plan. What Trump has offered instead is a gambit leading to disaster.
The administration has announced the imminent end of DACA unless something is done by Congress.
The administration will fumble any attempt to provide leadership of that “something,” as it previously fumbled health care and will fumble tax reform next. It’s hard for an administration to lead when the president does not care about policy, when the White House staff spends its days knifing each other, and when actual policy expertise is a disqualification for White House employment.
Lacking leadership, Congress will fail to produce “something.”
Lacking any concrete proposal to debate, the immigration discussion will instead focus on the personal stories of the most sympathetic DACA beneficiaries.
As local news bombards them with such accounts, GOP members of Congress—facing an already ominous 2018 cycle—will panic and buckle. They will extend DACA without any offsetting concessions at all, punting the rest of the immigration agenda to later.
By the time “later” arrives, the Democrats will have scored big gains in Congress, possibly winning control of one or both Houses.
The Wall will never be built. Numbers will never be cut. The Democratic distaste for any enforcement at all of immigration laws against non-felons will only harden—and it is already something near party dogma.
Trump will have indelibly branded the Republican Party as the anti-immigrant party without making any substantial or lasting change in immigration policy.
Most politicians trying to achieve a difficult thing will proceed carefully. They will build alliances, reassure moderate opinion, and try to isolate potential opponents. The Trump method is just the opposite: burn allies, scare moderates, and empower opponents. It’s all noise, no results, all the time.
No results? No, it will be worse than that: He’ll have entrenched in law the DACA policy that Obama bequeathed as a reversible executive action. Trump betrays everybody who trusts him. Those who looked to him to get control at last of the country’s borders will soon learn: They are no exception to the dismal general rule.
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