Don't Kick the Can Down the Road on Immigration Legislation

There is no time like the current congressional calendar

By Andrew R. Arthur on September 28, 2018

These are strange times for immigration enforcement. They are also the sorts of times that call for votes on important immigration legislation.

First, these are strange times because there is a disconnect between perception and reality on the issue. On the one hand, President Trump's immigration policies have been denounced as "harsh". The Nation, in a March 2018 article, neatly (and understatedly) summarized the opinions of those who disagree with the president as follows:

Without needing to change any laws, the White House has used the threat of gang violence and the need to protect national security as pretexts for draconian immigration policies. Yet the real aim has always been something else: to inflict maximum suffering as a means of pushing out unwanted newcomers as well as those whose extended presence in the country may threaten white supremacy.

That quote "begs the question" in the truest sense of the phrase.

This fact notwithstanding, on the other hand, as I detailed in a post earlier this week, while interior-enforcement arrests are now higher than they were at the end of the Obama administration, they are significantly lower than they were at the beginning of that administration. If The Nation were right, the president is failing in his attempts.

Similarly, while the president's border policies are characterized as "cruel", the latest numbers from U.S. Customs and Border Protection (CBP) show that the number of aliens who were apprehended along the border or deemed inadmissible at the ports of entry were significantly higher in August 2018 than they were just one year prior, and are inching up to their four-year high in FY 2016.

That is not all. MSNBC has proclaimed that "Sanctuary cities were meant to embody America's founding principles as a nation built by immigrants." In August, the New York Times published an opinion piece captioned "The Power of 'Abolish ICE'". In a September 2018 post, however, I quoted Kimberly Strassel from the Wall Street Journal, who wrote:

Uncommitted voters [in 41 House competitive districts] reacted strongly against Democrats' calls to abolish Immigration and Customs Enforcement [ICE], and strongly in favor of GOP promises to defund "sanctuary" cities and states, which refuse to follow immigration law. These were top messages for those crucial suburban voters, who have watched in alarm as urban violence creeps into their neighborhoods.

There is not even agreement on how significant the problem of illegal immigration is. As my colleague Steven Camarota recently wrote:

A new article published in the academic journal PLOS One argues that the size of the illegal immigrant population in the United States has been grossly underestimated by prior research. The authors make assumptions about cumulative inflows and outflows since 1990 and arrive at a "conservative" estimate of 16.7 million illegal immigrants in 2016 and an average estimate of 22.1 million — 50 to 100 percent larger than other estimates.

The findings are unsupportable. Accepting that there are 22 million illegal immigrants in the U.S. also requires accepting that every Census Bureau survey missed huge numbers of people and that most administrative data from the federal government is woefully incomplete. There is no body of research that corroborates such a claim.

Some call for amnesty as a solution to the problem, but there is disagreement about the effects of such an amnesty. For example, a newspaper wrote: "Amnesty would undermine the integrity of the country's immigration laws and would depress the wages of its lowest-paid native-born workers." On the contrary, however, a newspaper ran an opinion piece that stated:

Here's how you can detect the anti-liberal trolls in the immigration debate: Watch how they use the word "amnesty." Immigration is a complex issue. Any serious reform has to grapple with tangled realities, and any real conservative has an appreciation for that complexity. But if you try to account for that complexity before an anti-immigration troll, he or she will shout one word: Amnesty!

Maybe we should find some arrangement for the Dreamers? Amnesty! The so-called moderate House immigration bill? Amnesty! Keeping families together? Amnesty!

This is what George Orwell noticed about the authoritarian brutalists: They don't use words to illuminate the complexity of reality; they use words to eradicate the complexity of reality.

Actually, I was less than forthright. Both quotes are from the New York Times, but published 18 years apart.

All that said, immigration reform legislation has failed this year in both the House and the Senate.

Now, I am loath to question the decisions of elected representatives. I was treasurer of the student bar association at my law school, but that was the only election I ever remember winning, and I am not sure that anybody else wanted the job.

The average member of the House of Representatives, on the other hand, represents a district of 710,767 people, and at some point won a majority of those who actually showed up to vote. Senators (unless appointed) had to win a majority of the voters in their individual states. Notwithstanding the poor pay and the long hours, these are still sought-after positions, and often hotly contested. Our representatives generally take votes based on principle, but those principles generally reflect the views of their voters. The greatest truism on Capitol Hill is: "If you don't represent your constituents, soon you won't represent your constituents."

Courts have not helped the issue. When the administration attempted to end the Deferred Action for Childhood Arrivals (DACA) program, judges stepped in to keep it going, as I explained in an August 2018 post. The prospect of the program ending would likely have encouraged Democrats (in particular) to make compromises that may have saved at least one of those bills.

Perhaps the American people have grown comfortable with the prospect of immigration laws that are not enforced. The biggest issue is that non-enforcement encourages more people to attempt to enter the United States illegally, which causes more lawlessness and hazards, which I detailed in a July 2018 post.

Non-enforcement also undermines democracy. As citizens, we agree to live under rules that have been established for us, even if some of those rules are dated. If the people don't like the laws, they can change the laws — that is the beauty of democracy. To have laws on the books that are not enforced threatens the enforcement of any law, in much the same way as the denial of rights to any person or group of people threatens the rights of all. The countenancing of non-enforcement by elected representatives shows a certain lack of fortitude on their individual parts.

Perhaps all of the noise of multiple media platforms makes it impossible for representatives to know exactly what their constituents actually desire. Anyone familiar with immigration knows that how you phrase a poll will often get you the outcome that you want. The loudest voices are not generally the most representative. "Special-interest groups" are called that for a reason.

Any contentious legislation is more difficult in an election year. The problem is, any year that is divisible by the number two is an election year, meaning that only odd-numbered years offer an opportunity to (more or less) safely cast a vote that the voters may forget. The more contentious, however, the longer the memory.

The current congressional calendar, however, offers a unique opportunity for leadership to get contentious immigration issues resolved one way or the other. According to Ballotpedia: "As of August 11, 2018, 56 representatives will not seek re-election to their U.S. House districts." Those members (almost 13 percent of the total) are relieved of having to face the voters. Further, the Republican Party (which currently controls the Senate) is only defending eight senate seats (and three of those incumbents are not running for reelection), while 10 Democratic senators are running for reelection from states that were won by Donald Trump in the 2016 election, again according to Ballotpedia. Most importantly, the speaker of the House himself is not seeking re-election.

If the president of the United States is resolved to make the midterm elections about him, he should get his wish. Leadership in the House and Senate should work with the White House to craft legislation to implement (where necessary) the president's agenda. And it should be put to a floor vote in both bodies. Voters who do not like Donald Trump are likely to vote against his candidates anyway, while the popularity (or not) of the president's proposals can be fairly, and publicly, evaluated. Members from both parties will have to take hard votes, but that should be part of the job.

John A. Shedd published a book of sayings in 1928 that included the following aphorism: "A ship in harbor is safe, but that is not what ships are built for." To poorly paraphrase Shedd, "Not taking votes is safe, but that is not what representatives were elected for."

Topics: Politics