Almost 80 million people in the United States are either adult immigrants or the children of immigrants—about one in four of us. The stakes for America’s future in admitting the right numbers and types of immigrants are very high. The urgency of assuring that they are well integrated into our society is even greater. More than fifty years after the landmark 1965 statute establishing our immigration system’s basic structure, and over 25 years after its most recent update in 1990, the issue (really a thicket of issues) remains stalemated.
Immigration reform, like Social Security, is often considered a “third rail” of American politics, likely to inflict serious harm on those bold or foolish enough to touch it. With Republicans now controlling both the White House and Congress—the first single-party control since 2010—this could change.
Why are some issues so hard for politicians to deal with constructively? In a new book, One Nation Undecided: Clear Thinking about Five Hard Issues That Divide Us, I first answer this question by analyzing the features that all hard policy issues share, and then take on each of the five: poverty, immigration, campaign finance, affirmative action, and religious exemptions from secular policies after the Supreme Court’s Hobby Lobby and Obergefell rulings.
All of these issues, certainly not least immigration, share at least eight features. First, “hard” issues are usually national in scope or importance, so the public looks to Washington to come up with solutions instead of to the states or localities. Second, they are highly salient to the public. Third, they are historically inflected, bearing the imprint of earlier struggles that continue to drive, distort, and constrain current debates. Fourth, they turn partly on complex empirical disputes that current knowledge cannot authoritatively resolve, and fifth, they engender deep normative debates over widely held, deeply felt values. Sixth, this complexity requires policymakers to make relatively fine distinctions the understanding of which a generalist public finds elusive. Seventh, the institutional density in which hard issues are embedded makes agreement hard to reach. Eighth, their solutions are severely constrained by a legacy of politically entrenched interests, poorly performing programs, and political commitments. Immigration exhibits all of these resolution-resistant features, and more.
The United States admits by far the largest number of legal permanent residents (LPRs) of any country in the world: more than a million each year, most of whom already live here based on a visa status or as undocumented residents.1 Almost two-thirds of them qualify as members of U.S.-resident families, another 15 percent are employment-based, 13 percent are refugees and asylum-seekerss, and 5 percent are so-called diversity admissions. (Roughly two-thirds of the total visas go to “derivative” family members). The largest LPR cohorts in the United States come from Mexico (about 27 percent), followed by India (6 percent), China and the Philippines (5 percent each), Cuba, Vietnam, and El Salvador (3 percent each), and smaller cohorts from elsewhere. In 2015, however, the incoming Indian cohort was much larger than the Mexican. We also admit more than 180 million temporary “non-immigrants” under a welter of specific categories. The immigrant share of the population today is almost 14 percent, approaching the record set about a century ago.
Illegal (“undocumented” or “unauthorized”) immigrants are of course harder to count and identify, but the best estimates approximate 11 million, with about 54 percent concentrated in four states (California, Texas, New York, and Florida). The total has declined by about 200,000 each year since 2007, with the Mexican cohort declining especially fast—new arrivals from Mexico are now at their lowest level since the early 1980s. Illegals’ average stay has lengthened dramatically, however; about 60 percent have been here for ten or more years, compared with 26 percent in 2000. The net inflow (new entries minus departures) has been negative since the Great Recession. This decline began earlier, but a resurgence may be occurring, especially among Asians. About two-thirds of illegals were admitted legally but are now out-of-status because they overstayed or otherwise violated their temporary visas. The rest entered illegally in the first place.
Three features of the undocumented population profoundly affect their incentives to remain or depart. First, at least 9 million people live in mixed-status families that include at least one unauthorized adult and one U.S. citizen child. More than five million children under age 18 live with an unauthorized immigrant parent—representing roughly 7 percent of all children in the United States. Almost 80 percent of these children are citizens. Second, the legal status of many undocumented immigrants changes over time—they become eligible for legal status under certain conditions—and many LPRs spend time in illegal status before receiving their green cards. Finally, undocumented males are more likely to be in the workforce than citizen and legal immigrant males.
Immigration policy’s seeming incoherence is partly structural, beginning with the statute. The Immigration and Nationality Act (INA), administered by the Department of Homeland Security (DHS), is long and complex, spreading immigration policy responsibilities among many Federal departments and agencies with different missions, priorities, and politics. Confusingly, the INA combines close congressional control over DHS officials with broad delegations of discretion to those same officials, but amendments in 1996 severely limited the agency’s enforcement discretion. In situations where common sense and fairness seem to require flexibility, its hands are often tied. This in turn helps account for its bad press, poor public reputation, and frequent rebukes by Congress, the courts, and the agency’s own Inspector General for illegal conduct and incompetence. Federal employees government-wide rank DHS at or near the bottom of all Federal agencies.
Enforcement backlogs—in visa processing and in legal review of enforcement actions by both the specialized immigration courts and Federal courts—are immense, with immigration courts facing a huge and rising backlog exceeding 500,000 cases. This weakens deterrence and has led to the detention of up to 35,000 immigrants awaiting decisions in their cases. Their detention is costly to DHS, limits detainees’ freedom, and impairs their ability to mount a legal defense (if they have one). Yet detention often seems necessary because immigrants in proceedings have strong incentives to flee or “return to the shadows” (as the cliché has it).
Immigration arouses unusually intense passions: patriotism, security, borders, morality, ethno-racial identity, family nostalgia, partisanship, demographic destiny, economic prospects, and other potent issues are mixed in the emotional cauldron. The 2016 presidential campaign, which made immigration’s salience to voters much greater than before, demonstrated just how complicated public attitudes are. Immigration, especially by Latinos, is pushing many Americans rightward toward a conservative political agenda. Yet Latino increases have not prevented New York, California, and Colorado from becoming more liberal, nor have they (yet) produced restrictive Federal legislation. In a mid-2015 Pew survey, 72 percent of Americans favored allowing illegal immigrants to remain here if they meet certain conditions. (Which conditions remain unclear.)
Americans like immigrants more than they like immigration. They favor past immigration more than recent immigration, prefer legal immigrants to illegal ones, and prefer refugees to other immigrants (though President Trump is now testing this proposition). The public also supports immigrants’ access to education and health benefits but not to welfare or Social Security. Americans feels that immigrants’ distinctive cultures have contributed positively to American life and that diversity continues to strengthen American society. At the same time, they overwhelmingly resist any notion of multiculturalism that discourages immigrants from learning and using the English language. (Most immigrants feel the same way).
Yet negative attitudes toward current immigrants are common—in 2015, 45 percent of Americans considered the impact of immigration on society positive on net, but 37 percent thought it was a net negative, a common view among Trump voters. Americans cherish their immigrant roots but think that current immigration levels are too high—yet that has always been true. (I doubt that most know what those levels actually are, given Americans’ ignorance of many basic facts.)
Attention-getting but context-free and fact-scarce news reports—a large influx of unaccompanied minors, DHS enforcement fiascos, terrorist threats—can increase public opposition somewhat, but the general pattern is fairly stable. Republicans tend to be more restrictionist than Democrats, but many conservatives—business groups, libertarians, and the influential Wall Street Journal—strongly advocate more immigration, and many Democrats (particularly union families or supporters) prefer less, or at least no more, than we have now. These attitudes are further complicated by ignorance about how the immigration system actually works. On legal admissions, few Americans realize that the waiting time for a green card can be decades for those from high-immigration countries like Mexico and India. They do not realize that legal and illegal immigrants are often the very same people at different points in time.
Remarkably, immigration politics has regularly yielded laws that are far more expansionist than the public says it wants—one reason, no doubt, that Trump’s complaints about immigration levels found a welcome audience. The interest groups that succeeded in enacting expansive legislation in 1986 and 1990 continue to do so today. Many employers depend increasingly (sometimes almost entirely) on high-skill immigration for their workforces. American hospitals chronically depend on foreign doctors and nurses to staff their wards, and many universities look to foreign students (more than a million) to pay tuition and, at the graduate level, to conduct research and teach undergraduates. At the lower-skill end, foreign nannies help free up mothers to take outside jobs; hotels and restaurants rely heavily on (often undocumented) immigrants; and growers need unskilled farmworkers to do work that U.S. workers are often said (controversially) to reject. Ethnic groups are also major, and often effective, proponents of immigration expansion, welcoming immigrants to invigorate their communities.
Until the 1980s, the most important group opposing immigration was organized labor. Unions traditionally viewed immigrants as low-wage competitors for members’ jobs and a brake on wage growth. But the gradual weakening of unions’ organizing strength and their need to look to immigrants as new members led to a seismic political shift. They began pushing legalization of the undocumented in hopes of making them easier to organize, improving their economic well-being, and strengthening the government’s enforcement of labor standards. Black civil rights organizations, another traditional opponent of immigration due to concerns about its effects on black jobs and wages, have also been neutralized by their liberal positions on other issues and by their tactical alliances with Hispanic and other pro-immigration groups.
Immigrant-receiving states and localities, which are increasingly widespread due to the increasingly diffuse destinations of immigrants, bear a disproportionate share of the costs of the social services that immigrants, especially low-skilled ones, require and of whatever disruptions their presence may cause. The varying attitudes of voters and officials produce quite different enforcement policies across jurisdictions. Many states have enacted laws designed to make life harder for immigrants and enable Immigration and Customs Enforcement (ICE)—DHS’s enforcement agency—to remove them more easily, hoping that they will “self-deport” or at least move to other states. But the viability of such laws is doubtful. The courts have struck down some of these provisions, usually on the grounds of Federal preemption.
At the other pole, hundreds of localities, many with large immigrant populations, had moved to stymie ICE enforcement by adopting sanctuary policies to shield illegals. Some jurisdictions, especially California, have even instructed officials to ignore ICE detainers seeking to hold immigrants in local jails until ICE can take custody of them. In some states, however, a political backlash against non-cooperation has reversed that policy, and the Trump Administration vows to end this resistance. Before his appointment, Attorney General Jeff Sessions was the Senate’s most powerful voice for restriction.
Immigration’s economic impact is hotly contested—partly because it is methodologically difficult to measure and assess, and partly because it varies depending on the immigrant’s legal status, location, industry, skill level, English fluency, and other factors. Still, some general patterns are clear.
Immigrants’ human capital is distributed bi-modally, with large numbers at the high-skill end but many more at the low end. Immigrants account for a disproportionate share of those with low literacy and numeracy skills, and even those with college educations are far less literate in English than natives are. According to George Borjas, a leading labor economist, recent immigrant cohorts come with less human capital (relative to the U.S. population) than earlier cohorts, mainly due to the large rise in undocumented migrants. These very low education levels help to explain why the National Academy of Sciences (NAS) finds that net economic benefits from immigration are modest and largely concentrated in sectors that employ immigrants, especially the undocumented.
Immigrants’ relatively high fertility rates, which gradually converge with that of the native-born, increase our social dynamism and prospects of future fiscal solvency. Now accounting for 95 percent of our population growth, they make our population much younger than those of our developed-world competitors. And because most immigrants arrive as young adults, they tend to impose fewer burdens on education and child-oriented social services (a difference that vanishes in the second generation). Undocumented migrants who work on the books pay Social Security and income taxes; all, of course, pay sales taxes.
Immigrants also contribute disproportionately to the nation’s innovation (at the high-skill end) and entrepreneurship (at all skill levels), as well as to the reinvigoration of our cities and some rural areas. The NAS study confirms that low-skilled undocumented workers do create downward pressure on wages and working conditions, but immigrants also can facilitate “complementarities” that increase the efficiency of other workers, while their own consumption of goods and services creates jobs.
The pertinent debate, then, is over how large these effects are, which groups bear the negative outcomes, how they net out, and how they are altered by changes in immigrants’ skills mix. Some studies conclude that such downward pressure primarily harms the wages of other immigrants, not American workers. But others find that low-skilled immigrants significantly and adversely affect Americans who are high school dropouts, minorities, non-unionized, and low-skilled workers, many seeking their first jobs. This competition at the bottom is particularly acute because many employers apparently prefer immigrants, including blacks, over African-American workers. Immigrants’ net fiscal impact on government is also very hard to gauge, partly because of a “fiscal mismatch”: Their use of public services, especially education and hospitals, mainly burdens state and local budgets, sometimes severely, while the revenues their work generates go disproportionately to Washington.
Another important economic—and broadly social—question is how immigration affects intergenerational mobility. The United States has traditionally prided itself on its performance compared with other developed societies on this important factor, yet we are now in the middle of the OECD pack. But if we include the dramatic economic and social gains of the 90 percent of immigrants who come here from low-wage countries, our success rises sharply, reflecting their dramatic income mobility. Because LPRs and most undocumented immigrants are in effect part of our society and will likely remain so, they should be included in the mobility analysis.
Policy Issues and Reforms
Almost all commentators on immigration policy begin with the same cliché—the current system is “broken”—but they disagree fundamentally about which parts are broken, what has caused the breakage, and how it can best be repaired. Two issues—enforcement and legalization—illustrate why reform is so difficult.
Enforcement: Immigration enforcement—at the borders and in the interior through use of exclusion, deportation, and various other civil and criminal sanctions—is a perennially difficult issue for many reasons. First, enforcement is inherently problematic. Undocumented workers often appear indistinguishable from legal ones, avoid interactions with police or ICE officials, easily and cheaply obtain false documents, and may successfully elude detection for decades, often with the help of sympathetic employers and neighbors. Many go in and out of legal status themselves while often acquiring new “equities”—based on family (spouses and children with legal status) and employment relationships—that can stymie deportation.
ICE’s removal of women, children, and asylum-seekers often arouses widespread media attention and public sympathy and solidarity, even civil disobedience. Confronted by a courageous, hard-working migrant’s well-publicized human drama, liberal societies are strongly tempted to make room for one more, ignoring (or repressing) the reality that one more actually means many more.
Defense of the larger, inevitably anonymous “system” against heart-rendingly personal claims falls largely to the beleaguered, but still often justly criticized, immigration bureaucracy. Some 4,000 to 6,000 migrants have reportedly died between 1994 and 2009 trying to enter the United States illegally, and others have suffered grave physical harm from the harsh desert conditions in the southwest, as well as exploitation, violence, and abuse at the hands of smugglers. In 2014, the Border Patrol picked up more than 68,000 unaccompanied minors at the southwestern border, keeping many of them in makeshift or improper facilities pending disposition. This alarming situation resumed in 2015 when ICE apprehended some 10,000 unaccompanied minors in just two months—and the public outcry worsened with the disclosure that government agencies (not just ICE) had released a dozen or more minors into the custody of human traffickers! (Most apprehended illegal immigrants, of course, do not arouse this kind of public sympathy, but are unceremoniously detained and removed). Instances of bribery and abuse by the Border Patrol are sometimes cited by the agency’s own Inspector General and occasionally prosecuted.
The U.S. asylum system also hobbles enforcement. Those with a “credible fear” of the kinds of persecution covered by the Refugee Act can demand a full hearing on their claims, which in turn may enable even unsuccessful claimants to delay removal proceedings for years or until death we do part. In recent years, asylum officers have found “credible fear” in a large majority of cases. As of late 2015, the asylum adjudication system was so gridlocked that applicants could predict that any deportation hearings would occur far in the future, which in turn drove yet another large increase in asylum claims. To make matters worse, the Goverment Accountability Office finds that ICE is poor at detecting asylum fraud.
Politics also impedes immigration enforcement. Powerful interests want more immigrants, depict undocumented work as a victimless crime, oppose effective enforcement, and use their influence to thwart it. The law’s sanctions on employers are so minor and little-enforced that businesses readily hire illegal workers willing to work at lower wages and resist unions. Poor targeting of enforcement leads ICE to deport mainly those without criminal records or who are non-serious offenders, and to divide and disrupt many mixed-status families.
Despite generous congressional appropriations, especially to the politically favored Border Patrol, the enforcement budget is still insufficient for ICE to remove more than a small fraction of the undocumented, much less to also apply formal criminal and civil sanctions against violations by immigrants, their employers, document fraudsters, smugglers, drug gangs, and others subject to those sanctions. Immigrant advocates were part of President Obama’s political base, yet they bitterly denounced him as “deporter-in-chief” for removing a record number of immigrants during his presidency. Their attacks on Trump will of course be much more strident, but probably less effective since Trump’s base lacks immigration advocates. And although ICE’s detention capacity has reached more than 30,000 beds, bed shortages remain in some high-load localities. Detention, while costly to ICE and hard on detainees, remains crucial to effective enforcement due to the high absconding rate mentioned earlier.
Indeed, this enforcement apparatus is “built to fail,” according to a former immigration judge, who points to ICE’s chronic inability to find absconders or to enforce final deportation orders. He notes that the government under-reports the true, stratospheric level of non-enforcement. (Tellingly, ICE letters ordering deportable immigrants to report for removal are known in the trade as “run” letters; most targets abscond immediately with little or no ICE follow-through). Indeed, DHS’s own Inspector General reported in 2015 that ICE’s program to promptly remove those adjudicated to be dangerous and to pose a high risk of absconding is so poorly run that many of them disappear, only to commit other crimes.
For those who favor admitting more legal immigrants than we do now, another consideration looms large: More effective enforcement against the undocumented is a political precondition for public support for more immigrant-friendly policies. David Martin, probably the country’s leading immigration scholar and a liberal immigration reform advocate with high-level agency experience, emphasizes this crucial but often-ignored political link between a more expansive immigration policy and public perception of enforcement effectiveness. In his aptly titled article “Resolute Enforcement Is Not Just for Restrictionists,” Martin shows how weak enforcement almost always leads the public to demand harsh, often ill-advised restrictions that actually magnify enforcement failures, stymie useful reforms, and make expanding legal immigration politically impossible.
Martin goes on to propose sound strategies to enhance enforcement success. Correctly noting that interior enforcement is the “weakest part” of our system, he urges shifting some resources from the Border Patrol to identifying and apprehending overstays and those who enter without inspection, emphasizing that collecting biometric information for exit verification is insufficient without other enforcement changes.
He also proposes that DHS strengthen and mandate the E-Verify program, which in principle provides real-time online information to potential employers and local enforcement agencies on the legal status of those seeking work or other benefits. Immigrant advocates criticize the program’s unreliable database, confusion of common Hispanic names, false positive hits, and vulnerability to identity theft. But recent changes, Martin shows, have reduced these problems and increased its reliability. It can be further strengthened—for example, by including digitized state driver’s license photos. Finally, streamlined procedures can remove the most straightforward overstay cases.
Legalization: Although the roughly 11 million illegal immigrants contribute to the U.S. economy and perhaps in other ways, their continuing illegal status is problematic for many reasons in addition to the fact of their having broken U.S. law. They must live in the shadows, which is demoralizing and renders them more vulnerable to many afflictions: blackmail and other crimes, fear of the police and of using other public services, untreated illness, and other ills resulting from social isolation. In addition, as noted earlier, many live in mixed-status families that include U.S. citizen children entitled to be here and thus have important ties to the United States and its institutions despite their outlaw status. Their relations with American citizens and LPRs may be deeply compromised and prone to social and economic exploitation, and their liminal status reduces their incentive or desire to assimilate more fully into American life despite their possibly permanent presence here.
For these and other reasons, Congress has periodically enacted programs to confer legal status of one kind or another—usually a path to LPR status under specified conditions, and ultimately to citizenship—on certain groups of the undocumented. Another form of legalization (“registry”) authorizes giving LPR status to those who can show that they have continuously resided in the United States since a certain date, are not within the most serious inadmissibility categories, and meet a good moral character standard.
Even with registry and the slowdown in new illegal migration since the Great Recession, the size of the long-term undocumented resident population has risen substantially: The median time of U.S. residence for undocumented adults is now about 13 years (a five-year increase since 2003), while only 15 percent have been here for fewer than five years. Congress should advance the registry date to at least 2000—the old date, not changed in thirty years, is 1972!—and, perhaps later, adopt a continuous residency period analogous to the one in its 1986 law (the Immigration Reform and Control Act). There can be no reasonable objection unless one opposes even this longstanding form of legalization—here regarding a group of individuals whom the government will not conceivably seek to remove.
Three other types of legalization programs are far more central to the current immigration debate than registry. Varying in breadth, they are directed at (1) the general undocumented population, (2) agricultural workers, and (3) young people who have grown up here.
As to category 1, the main precedent for broad relief is IRCA, which legalized almost 2.7 million people. These included 1.6 million general workers, 1.1 million special agricultural workers (SAWs), and 38,000 Haitians and Cubans. Congress later enacted smaller amnesties for those from particular countries: Nicaragua and Cuba in 1997, Haiti in 1998.
Depending on legislative bargaining and administrative needs, legalization may impose several eligibility requirements: a defined period of residence and of illegal status in the country; absence of criminal conduct (variously defined); payment of penalties, back taxes, and fees; documentary evidence of illegal residence; a “touch back” requirement that the applicant first return to the home country; a waiting period on the queue; transitional legal status for a certain period, perhaps leading to a path to a green card and eventually citizenship; access to work permits pending approval of their applications; limits on job mobility and access to public benefits for certain periods; provisions for certain family members; and many others.
Several aspects of IRCA’s broad legalization are notable. Because it purported to require case-by-case assessment for eligibility, it generated high administrative costs and lengthy litigation. Fraud and error were rampant, especially in the SAW program. Documentary evidence of eligibility was often elusive. With a long path to citizenship, “family fairness” adjustments were adopted for humanitarian reasons. NGOs played a major role in mobilizing applicants fearful of deportation. Eligibility for welfare, Medicaid, and other safety-net benefits for the legalized became a hot political issue.
These design issues are not only difficult in themselves; they also entail hard practical and moral trade-offs. The more generous and inclusive the program, the more the public may feel that illegality is being rewarded. (Opponents often use the term “amnesty” to stoke this feeling.) Yet if the conditions are too onerous, the undocumented may decide to take their chances by remaining in the shadows rather than apply. Allowing the newly legalized to jump the queue for green cards will be unfair to those who have been waiting for years. The easier it is for them to change jobs during the process or once legalized, the less likely employers will support the program. No legalization program is likely to pass unless eligibles are barred from accessing federally funded welfare benefits for some years, as they proceed through various provisional statuses to green cards and then citizenship. The list of issues and trade-offs like these is very long indeed.
Regardless of how these design issues are resolved, deterrence is an important concern about any legalization program—and perhaps the strongest argument against it, given the numerous such programs enacted since IRCA. The largest were instituted by President Obama in 2012 and 2014, discussed below. These programs further erode the credibility of the government’s enforcement threat. At the margin, people carefully weighing the benefits and risks of coming to the United States illegally may be more likely to take the chance given the prospect of another amnesty or an extension of the existing one. Those who are already here and hope to stay would have less reason to return home.
On balance, however, we need some such program for the long-time resident, noncriminal undocumented, especially if coupled with serious enforcement efforts directed at new undocumented arrivals. For one thing, no government, regardless of which party controls it, will deport most of them anyway—especially the so-called Dreamers (childhood arrivals). Even President Trump has signaled that he will not do so. Since they will remain indefinitely, it is better for them, their families, and American society that they gain legal status and get on with their lives and their connections to the rest of us—however inconsistent with rule-of-law rhetoric this may seem.
Simply stated, the alternative—maintaining the status quo for an ever-increasing undocumented population—is worse. As so many Americans already recognize, a rule of law so patently, even hypocritically, unenforceable mocks itself, creating much collateral damage. A starting point for any new legalization debate would be the comprehensive immigration reform bill that passed the Senate in 2013 but was not taken up by the House. Its Registered Provisional Immigrant (RPI) program had three discrete components—for Dreamers, farmworkers, and others in the United States since December 31, 2011—and specified the kinds of eligibility requirements and other limitations discussed above.
As to category two, agricultural workers, IRCA legalized 1.1 million SAWs, but the administrative and litigation processes stretched out for many years thereafter, during which new cohorts of undocumented farmworkers have entered and new legalization proposals were advanced. Agricultural labor economist Philip Martin points to another trade-off: Legalization might favor current unauthorized workers over future legal guestworkers, since those now working illegally in U.S. agriculture could later become U.S. citizens, while future guestworkers under such a program will have lower wages and may not have access to permanent residence, much less citizenship.2
As to category three, young people, the Dreamers present the most compelling equitable case for not being deported because they were brought here as children at an age when they bore no conceivable responsibility for their parents’ unlawful entry, and because they have been raised and educated in the United States and have stayed out of legal trouble. Starting in 2001, Congress considered various versions of bipartisan legislation to accord the Dreamers conditional legal status, but it became embroiled in political disputes over broader immigration disagreements and other issues, and never passed Congress. Hoping to circumvent this logjam, President Obama established the Deferred Action for Childhood Arrivals (DACA) in June 2012, invoking the Executive Branch’s prosecutorial discretion in order to distinguish it from amnesty.
In November 2014, President Obama—again invoking prosecutorial discretion—further extended DACA eligibility by easing some of its eligibility requirements and also established a new program granting relief and similar benefits to the parents of U.S. citizen children (Deferred Action for Parental Accountability, DAPA). Shortly thereafter, DHS announced an offer of similar status to Central Americans who are parents and children of those qualifying under these programs. An estimated 3.9 million are eligible under DAPA and another 1.5 million under DACA. (This number will grow as more children grow older and satisfy the education requirement).
Then, in June 2016, an equally divided, truncated Supreme Court left in place an appellate panel’s ruling that upheld a district judge’s holding that DAPA and the government’s extension of the DACA period exceeded presidential authority. President Trump, after denouncing both programs in his campaign, has not yet decided what he and Congress should do about them.
Regardless of the legality of DACA and DAPA, strong policy arguments cut against deporting noncriminal Dreamers and parents of birthright citizens. Given ICE’s priorities and limited enforcement resources, and the Dreamers’ likelihood of remaining here with their parents and of contributing to American society, this is the group that ICE is least likely to actually deport. The main issues surrounding relief for Dreamers and the parents of citizens, then, are whether Congress should authorize such relief, what the precise eligibility criteria should be, and which public benefits those eligible under the programs should receive.
Congress is unquestionably the appropriate institution to establish such a program and to design its general parameters. As the chief immigration policymaker, only Congress can forge the political compromises and vote for the funding essential to successful implementation. The Obama Executive Order granted the eligibles work authorization, Social Security cards, some tax credits, and even income supplements under the child and earned income tax credit programs. One estimate of the cost of these benefits is $7.8 billion a year, plus large implementation costs for the agencies. Needless to say, the new Republican Congress will not grant such generous benefits to the legalized.
Thinking clearly about immigration, we have seen, is challenging for many reasons. Its deep emotional resonance goes to the very definition of what America has been, is, and may become. Our personal identification with our ancestors’ immigrant experience and their social mobility here predisposes us, more than other peoples, toward a complex view of immigration and immigrants, both legal and undocumented. For most of us, the questions are: how many, which ones, under what conditions, and then how the resulting policies will be enforced. As we search for answers, the facts really are essential. Still, these facts do not always speak for themselves or lead to unambiguous answers.
For me, these facts argue in favor of far-reaching legislative and administrative policy changes. The economy has tripled in size since 1990 when Congress established the current LPR quotas, and employers’ demand for well-trained workers has grown apace. For debatable reasons, American workers cannot fully meet these needs, so equipping them for the new economy should be among our highest social priorities. But until this happens, Congress should increase the number of legal admissions for high-skilled immigrants, both LPRs and temporary ones. (Reasonable people will differ on the optimal size of higher quotas and the requisite credentials). It should also repeal the diversity lottery, using those 50,000 visas to experiment with auctions to attract the most skilled workers and yield revenues that can be put to good social use.
Congress should enact a legalization program that is fair to those already in the green-card queue and generous enough to induce the undocumented to participate rather than remain in the shadows. It should update the registry provision, and should craft an expanded guestworker program that protects farmworkers from exploitation, ensures that they depart at season’s end, and is flexible enough to meet growers’ planning needs. Another reform priority is to ease some of the excessive, simplistic restrictions on ICE enforcement discretion that Congress imposed in the 1996 law.
As noted earlier, the public simply will not support these reforms until it is convinced that enforcement—in the interior and at the border—is more effective than it is now. ICE, for its part, should eliminate the bugs from the E-Verify system, mandate its use nationally, and link it to prioritized legalization of otherwise eligible illegals. As all now agree, it should focus its enforcement programs on more serious crimes and immigration violations while using the new legalization program to decide which offenses should disqualify applicants.
ICE should certainly pursue employer sanctions much more aggressively than it has, with more meaningful penalties. It should also monitor over-stays more closely, deport removable criminals as soon as their appeals are exhausted, and consider using bounties to enforce “run letters” more effectively. It should follow up on earlier experiments with alternatives to pre-removal detention, including new monitoring technology and more liberal bonding decisions using newly developed algorithms to reduce errors and absconding. It should study why immigrants’ naturalization rates (especially among eligible Mexicans) are so low, and how to increase those rates. (New York, for example, is experimenting with a plan to pay the naturalization fees for thousands of low-income LPRs through a lottery.)
Perhaps most important in the long run, Congress should recruit Federal departments, local education agencies, and the private sector to increase the resources devoted to the rapid English-language acquisition that is vital to the high priority of fully integrating immigrants into American life.
Yes, all this is hard. But since America still benefits from immigration, the national interest dictates that Congress finally get down to doing what is hard, and do it right.
1Sources for all data contained in this essay may be found on pages 389–402 of One Nation Undecided: Clear Thinking About Five Hard Issues That Divide Us.
2See Philip Martin, “Be My Guest Worker?” The American Interest (January/February 2007).