About the Border Crisis

Paranoia, Partisanship, and Policy

As I’ve written here regularly, governance is more important than politics. It’s one thing to campaign on perceived grievances against the party in power but it’s another thing to figure out how to pass needed legislation once elected. In an ideal world, partisanship would take a back seat to policy once elections are over and members of the legislature officially take their seats. Of course, we don’t live in that ideal world.

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It’s been 38 years since the last time we had comprehensive immigration reform. In 1986, President Reagan and congressional leaders came together to ban (or at least limit) the hiring of aliens entering illegally (with carve-outs for farm workers) and granted status to those who had been in the county continuously since 1982 (barring federal benefits until 1991). Discussions in Washington had been underway for a decade, but illegal entry in FY 1986 was 30% higher than the year before (1.8 million), which prompted action.

It’s been 11 years since the so-called “Gang of Eight” obtained Senate approval for what Politico described as a “monumental overhaul of our immigration policy”. It passed the Senate 68-32.

The Gang of Eight bill would essentially revamp every corner of U.S. immigration law, establishing a 13-year pathway to citizenship for millions of undocumented immigrants, with several security benchmarks that have to be met before they can obtain a green card. The measure would not only increases security along the border, but requires a mandatory workplace verification system for employers, trying to ensure no jobs are given to immigrants who are not authorized to work in the United States.

It also includes a new visa program for lesser-skilled workers – the product of negotiations between the U.S. Chamber of Commerce and labor unions. And it shifts the country’s immigration policies away from a family-based system to one that is focused on more on work skills.

The Republican-controlled House never brought the bill to the floor.

Which brings us to today. Senators from both sides of the aisle (they don’t have a cute name) have been working for months on a bill that would approve funding for Ukraine and Israel and also strengthen the security of the southern border. As the number of those seeking entry into the US has surged (approximately 2.3 million in FY 2023), the urgency to do something is clear.

The proposal, according to Oklahoma Senator James Lankford, would take a number of important steps. It has the goal of reducing illegal crossings to zero.

This bill focuses on getting us to zero illegal crossings a day. There’s no amnesty. It increases the number of Border Patrol agents, increases asylum officers, it increases detention beds so we can quickly detain and then deport individuals,” Lankford said on “Fox News Sunday.”

“It focuses on additional deportation flights out. It changes our asylum process so that people get a fast asylum screening at a higher standard and then get returned back to their home country,” Lankford added.

The House has again said that they will not consider any bill coming forward. Not only does former President Trump oppose it, but they don’t want to be seen as aiding President Biden (which Dan Pfeiffer suggests may potentially help Biden) . They aren’t interested in taking up the debate over policy, but they are eager to impeach Homeland Secretary Alejandro Mayorkas (for reasons).

Meanwhile, we have a constitutional threat emerging at the Texas border. Governor Abbott has continued to experiment with various draconian measures. First, there were floats and blades in the middle of the Rio Grande and now there’s barbed wire along part of the border, which is blocking Border Control from doing their jobs. The Supreme Court, on a 5-4 vote, sided with the Biden administration that this was a violation of federal prerogative on immigration. Abbott and fellow Republican governors have said that they don’t care.

This is on top of Abbott’s long-running tactic of busing migrants into so-called sanctuary cities with Democratic governors. This action has pushed the limits of social support entities and required additional budgetary initiatives. It’s worth noting that while those cities have felt stress as a result, they actually have provided services rather than simply put people on buses to other states.

The draconian measures in Texas work politically. They are buttressed by never-ending claims of “open borders”¹ and “inevitable terrorist attacks” and “fentanyl trafficking”. But there is not even a hint of policy formation, even at the state level.

The Washington Post’s Catherine Rampell had an excellent op-ed yesterday about why our current stance toward immigration doesn’t work. The short version is that the policy solutions favored by the Republicans have been struck down by the courts.

Of the 35 major Trump-era immigration agency actions that faced legal challenges, 33 (94 percent) did not survive litigation — that is, either the court ruled against the relevant agency or the agency withdrew the action after being sued. These numbers are from the New York University Institute for Policy Integrity’s regulatory challenge database.

Even when Republican-appointed judges presided over such cases, Trump immigration actions were unsuccessful 90 percent of the time.

She suggests that one reason politics win out over policy is that policy is hard. It requires an in-depth understanding of the challenges faced at the border. How many Border Control officers do we need? How do we provide enough immigration judges (or their equivalent) to quickly deal with amnesty evaluations? What kinds of security measures would be most effective? All of these take funding and the House oversees the budget. Far better to rail about the current situation than actually take the steps necessary to implement actual policies that would make a difference.²

One of the things the conservatives don’t seem to understand is that deterrence doesn’t work. (It doesn’t work in criminal justice either, but that’s another newsletter). People evaluate the potential punishment against their status quo. If their government has fallen, their inflation rate is running at 30% or higher, climate change is destroying livelihoods, and gangs are targeting families, then whatever they face when they get to the US border will seem mild in comparison. Even floats, blades, and barbed wire won’t overcome the situation they left behind.

What we need is an intelligent yet compassionate immigration system that has sufficient processes for evaluating amnesty claims, doesn’t demonize those coming, protects against bad actors, and doesn’t leave everyone sitting in border states. This is not impossible. It’s a matter of governing.

Every day we rely on paranoia and partisanship rather than policy just makes solutions harder and the situation more cruel.

1. I saw a great editorial cartoon by Joe Heller last weekend pointing out that claims of “open borders” encourage migration.

2. By the way, I’m very nervous about what the Supreme Court will do with the “Chevron Defense”. If they rule that executive agencies can only apply rules set down by congressional action, as seems quite likely, the idea that Congress will step up and intelligently debate those rules is pollyannish.