Joe Biden's Immigration Plan

The former vice president should know better

By Andrew R. Arthur on January 3, 2020

Democratic candidate president Joe Biden has released his "Plan for Securing our Values as a Nation of Immigrants". It shares many of the worst ideas that I recently analyzed in Pete Buttigieg's immigration proposals, including amnesty, a weakening of our immigration system (both in the interior and along the border), and a reversal of the Trump administration's actions to ensure that aliens who would rely on the government dole for support are not admitted. As former vice president, however, he should understand the deleterious consequences of these proposals.

First, oddly enough, Biden ties himself to the failed "Gang of Eight" amnesty bill early on in his proposal, and then all but admits that the Obama administration (in which he served as vice president) simply decided to do administratively what it was unable to do legislatively:

The Obama-Biden Administration strongly supported the bipartisan comprehensive immigration solution that passed the Senate in 2013 and which would have put our country's immigration policies on a much stronger footing. When the Republican House refused to even bring that bill to a vote, the Administration took action to fundamentally change the course of our nation's immigration policies, offering relief and stability to hundreds of thousands of undocumented immigrants who contribute to our communities every single day.

As Vice President, Biden championed the creation and expansion of the Deferred Action for Childhood Arrivals (DACA) program; the Deferred Action for Parents of Americans (DAPA) program; the Central American Minors program, which allowed parents with legal status in the U.S. to apply to bring their children up from Central America to live with them; and the creation of a White House task force to support new Americans and help them integrate into their new homes and communities. [Emphasis added.]

These are not accomplishments to trumpet. DACA rescission is currently under review at the Supreme Court, DAPA failed in the courts, and the Central American Minors (CAM) program was largely just an effort to substitute the U.S. government for the smugglers who were taking money from "parents with legal status in the U.S." (most of whom had "Temporary Protected Status" (TPS), not permanent status) to bring their children to this country.

With respect to CAM, my colleague Dan Cadman has explained:

From its inception, CAM was, in essence, a DHS/DOS-sanctioned, but legally spurious, pipeline of migrants into the United States in ways never contemplated by law, designed by open-borders advocates within the Obama White House to create out of whole cloth an avenue of entry for aliens who were not eligible under any existing provision of U.S. immigration law.

That about sums it up.

Interestingly, Biden's statements about the Obama administration's executive immigration actions all but prove points that George Washington University law professor Jonathan Turley made in testimony before the House Judiciary Committee in December 2013:

The federal law mandates deportation for individuals in the country illegally. While prosecutorial discretion has been cited in individual case decisions, the Administration was using it to nullify the application of federal law to hundreds of thousands, if not millions of individuals. ... In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with. There is no claim of unconstitutionality. It is a raw example of the use of a "dispensing power" over federal law. It is difficult to discern any definition of the faithful execution of the laws that would include the blanket suspension or nullification of key provisions. What the immigration order reflects is a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment. If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense. [Emphasis added.]

Nonetheless, Biden promises to double down on this illegal executive power, if he is given it.

And, like Buttigieg, Biden promises to "ensure Dreamers are eligible for federal student aid (loans, Pell grants)." As I explained previously:

[F]or those who do not have college-age children:

Federal Pell Grants are direct grants awarded through participating institutions to students with financial need who have not received their first bachelor's degree or who are enrolled in certain postbaccalaureate programs that lead to teacher certification or licensure. Participating institutions either credit the Federal Pell Grant funds to the student's school account, pay the student directly (usually by check) or combine these methods.

Did I mention that, unlike loans, Pell grants do not have to be repaid, except under certain, very specific, circumstances?

...

Does it really make sense ... to force those who are "labor[ing]" in car plants and other industries to send their own children to institutions of higher learning to pay the college tuition of foreign nationals who were brought (or came) here from abroad?

On the subject of taxpayer money, Biden promises within his first 100 days in office to reverse the current administration's public charge rule:

Allowing immigration officials to make an individual's ability to receive a visa or gain permanent residency contingent on their use of government services such as SNAP benefits or Medicaid, their household income, and other discriminatory criteria undermines America's character as land [sic] of opportunity that is open and welcoming to all, not just the wealthy.

Biden never explains how the "use of government services such as SNAP benefits or Medicaid" or household income is discriminatory, unless he believes that certain groups are more likely to use public benefits than others (a tacitly shockingly discriminatory statement in and of itself).

That said, however, in connection with a similar proposal from Buttigieg, I noted:

As my colleagues Steven Camarota and Karen Zeigler have previously shown: "In 2014, 63 percent of households headed by a non-citizen reported that they used at least one welfare program, compared to 35 percent of native-headed households." I doubt that many Americans (even those who arrived as immigrants themselves) believe that this is how the system should work. We have restrictions on access to welfare programs because we expect immigrants to be able to provide for the support of themselves and their families. Not the taxpayers.

Further, Biden shows a certain disconnect from economic realities (and a certain disdain for his fellow citizens and the American economy) if he believes that only the "wealthy" are able to get by without SNAP and Medicaid. Most Americans are able to pay for their own food and healthcare without government assistance, and would logically expect those who would immigrate here to do the same.

This proposal is also inconsistent with his statement that:

For generations, immigrants have fortified our most valuable competitive advantage — our spirit of innovation and entrepreneurship. Research suggests that "the total annual contribution of foreign-born workers is roughly $2 trillion." Key sectors of the U.S. economy, from agriculture to technology, rely on immigration. Working-age immigrants keep our economy growing, our communities thriving, and country moving forward.

So, which is it? Are immigrants innovators, entrepreneurs, and contributors to the American economy, or are they hopelessly dependent on welfare programs? Logically, the candidate cannot have it both ways. But he tries to.

Returning to TPS, Biden promises to:

[P]rotect TPS and Deferred Enforced Departure (DED) holders from being returned to countries that are unsafe. TPS/DED holders who have been in the country for an extended period of time and built lives in the U.S. will also be offered a path to citizenship through legislative immigration reform.

Given the fact that TPS can only be granted to nationals of countries that are "unsafe", this proposal may sound benign, but it is likely anything but. Why would I say that? Because the candidate refers to the Trump administration's rescissions of TPS (to nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, all of which have been enjoined by the courts) as "politically motivated", without offering any proof, and despite the fact that the conditions that led to each of those countries' designation for TPS were resolved and/or ameliorated years ago.

With respect to the "legislative immigration reform" that Biden promises, as I mentioned with respect to Pete Buttigieg's proposals, such amnesties (in this case, for some 300,000 aliens with TPS) are usually easier said than done.

On the subject of amnesty, Biden promises that he will work with Congress on legislation to:

Create[] a roadmap to citizenship for the nearly 11 million people who have been living in and strengthening our country for years. ... Biden will aggressively advocate for legislation that creates a clear roadmap to legal status and citizenship for unauthorized immigrants who register, are up-to-date on their taxes, and have passed a background check.

In fact, he promises to "commit significant political capital" to this effort. But, as I noted with respect to Buttigieg's amnesty proposal:

Congress's refusal to pass such legislation under the Obama administration (particularly during the period Democrats held a majority in the House, a supermajority in the Senate, and the White House) suggests that enough members of Congress and senators do not see it as a winning issue to pass it.

It remains to be seen how much "political capital" Biden would be able to bring to this effort (particularly given questions about his son's prior business dealings that would likely haunt his administration), and of course any such effort would depend on the political make-up of the 117th Congress. That said, the fact that Biden is making amnesty for 11 million aliens a key point of his campaign raises the specter that such legislation could be in the offing if he were elected president.

Of course, the question then becomes why Biden did not use his "political capital" to get amnesty passed in the 113th Congress, when the Gang of Eight bill was on the table. From personal experience, as a senator he was well-enough liked on both sides of the aisle, and viewed as a man who could make deals. Either he did not go all-in on that previous amnesty attempt because he viewed the prospects of passage dimly, or he tried to get House passage of the bill and failed. Neither bodes well for his current amnesty promises.

Moreover, respectfully, the years have not boosted his legislative popularity (and many of those who served with him 12 years ago are gone), and a bruising presidential campaign (which is inevitable) is likely to simply deepen partisanship in both houses of Congress. The actions that passage of such an amnesty would entail (such as ending the filibuster in the Senate) would likely leave scars that would remain on the legislative branch for a generation.

Other Biden plans will simply increase the number of aliens who are unlawfully present in the United States. He would administratively restore the disastrous enforcement priority policies of the Obama administration, and "end workplace raids to ensure that threats based on workers' status do not interfere with their ability to organize and improve their wages and working conditions."

Together, these proposals would ensure that all aliens who are illegally present in the United States, aside from those who had committed crimes so significant that the administration could not ignore them (or who posed a serious enough national security risk), would be able to live free of the threat of removal indefinitely. In essence, these proposals would create an "amnesty in place", gut worksite enforcement, and prove a boon to human traffickers and fraudulent-document vendors.

Worse, they would give employers no incentive whatsoever to ensure that their workforces were legally present in the United States, depriving the neediest of American workers (both native-born and lawfully immigrated) of the opportunities to vie for jobs that are currently held by those here illegally (just one benefit of ICE's August 2019 operation at agricultural processing plants in Mississippi).

As I have previously explained at exhaustive length, the only way to ensure that workers can "improve their wages and working conditions" is to vigorously enforce the immigration laws of the United States. This is true for two reasons. First, a limitless supply of illegal labor, like a limitless supply of any input of production, will drive down the wages of the workforce, and put employers in a superior position when negotiating wages and working conditions.

Second, you could stop enforcing the immigration laws tomorrow, and unscrupulous employers would simply use the threat of firing (and immigration enforcement — albeit now nonexistent) to scare their workers into silence about safety concerns. I earlier offered proof for this conclusion in the context of an alien under a final order of removal who had been working on a construction site in New Orleans that suffered a catastrophic failure:

From dangerous meatpacking plants to deadly construction sites, access to illegal workers gives employers the space in which to operate. Is there any serious debate about these facts? If there is, consider this: The defense industry could, potentially, create disasters in the workplace that would make the horrible accident in New Orleans look trivial. The E-Verify federal contractor rule, however, "requires federal contractors, through language inserted into their federal contracts, to agree to use E-Verify to confirm the employment eligibility of all persons they hire during a contract term, as well as their current employees who perform work under a federal contract within the United States." In other words, defense contractors have a legal workforce. None of those workers are going to put up with safety violations.

Another interesting proposal from the Biden camp is the following:

In the first 100 days, a Biden Administration will:

...

Ensure that Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) personnel abide by professional standards and are held accountable for inhumane treatment. Biden will increase resources for training and demand transparency in and independent oversight over ICE and CBP's activities. Under a Biden Administration, there will be responsible, Senate-confirmed professionals leading these agencies, and they will answer directly to the president.

This is a loaded proposal, as much for what it does not say as for what it does. The candidate seems to suggest that ICE officers and Border Patrol agents are running roughshod over the rights of immigrants, and yet, Biden offers no evidence to prove this fact (which is contrary to my experience).

As for "demand[ing] transparency in and independent oversight over ICE and CBP's activities", there are already several institutions that perform just that, from the DHS Inspector General's Office (DHS OIG), to at least five committees of jurisdiction of ICE and CBP in the House of Representatives and the Senate (the House and Senate Judiciary, House Oversight and Reform, House Homeland Security, and Senate Homeland Security and Governmental Affairs Committees), the Government Accountability Office (GAO), a largely hostile press, and any number of aliens' advocacy groups.

Rather, it seems like what the former vice president is proposing is to threaten ICE and CBP employees into doing less immigration enforcement. And, while perhaps permanent heads of the two agencies would be more politically accountable, the fact is, acting leadership in the two agencies must answer to DHS OIG, Congress, GAO, the press, and interest groups now, without the protection of Senate-confirmed positions (which are like tenure for government employees). Confirmed heads of the two agencies would actually be even more, not less, difficult for anyone other than the president to remove, and Biden would likely pick supine bureaucrats (if not advocates), acting or confirmed, for those positions, anyway.

Biden also wants to expand asylum eligibility, reversing years of precedent that establishes that purely criminal activity does not constitute "persecution" for that protection (as explained by then-Attorney General Jeff Sessions in Matter of A-B-), while at the same time ending the successful Migrant Protection Protocols (MPP, also known as "Remain in Mexico") and "asylum cooperative agreements" (also known as "safe third-country agreements"), which share the burden of handling asylum claims with our regional partners.

Not content with that, Biden in addition apparently wants to codify the Flores settlement agreement (including its court-created loopholes that have encouraged migrant parents to bring their children when entering the United States illegally — at a danger to all), admit unlimited numbers of asylum claimants at the ports of entry, and limit detention in lieu of expanding unproven alternatives to detention.

Not satisfied with that, Biden wants to "dramatically increase U.S. government resources to support migrants awaiting assessment of their asylum claims and to the organizations providing for their needs," in essence providing federal dollars to support those who have entered illegally.

These policies would, in tandem, serve as a magnet to hundreds of thousands if not millions of migrants seeking illegal entry to the United States, safe in the knowledge that if they were simply able to make it to the Southwest border, they could live and work in the United States indefinitely, regardless of the strength of their asylum claims, or even if they had any such claims at all. They would serve as a "Smuggler's Relief Act", and line the pockets of cartels that charge a "tax" for the transit of every migrant across "their" territory.

The odd thing is that Biden, unlike the mayor of South Bend, Ind., should know this because, as vice president, he saw such migrant surges up close in FY 2014 and FY 2016. It was on his watch (and President Obama's) in 2014 that "cages" were erected at Border Patrol stations to segregate minors from adult migrants.

Further, he should be aware of the defects in Flores because the Justice Department, under the "Obama-Biden Administration", appealed the determination of Judge Dolly Gee of the U.S. District Court for the Central District of California that the Flores settlement agreement applies to both accompanied and unaccompanied minors and requires their release within 20 days to the Ninth Circuit (where it lost).

Of course, Biden asserts that the president's "obsession with building a wall does nothing to address security challenges while costing taxpayers billions of dollars," arguing:

Most contraband comes in through our legal ports of entry. It's estimated that nearly half of the undocumented people living in the U.S. today have overstayed a visa, not crossed a border illegally. Families fleeing the violence in Central America are voluntarily presenting themselves to border patrol officials. And the real threats to our security — drug cartels and human traffickers — can more easily evade enforcement efforts because Trump has misallocated resources into bullying legitimate asylum seekers.

There is a lot to unpack here.

Let's begin with the estimate "that nearly half of the undocumented people living in the U.S. today have overstayed a visa." Despite this claim, Biden does not assert that he will ask Congress for more resources for ICE to apprehend those individuals, or strengthen the Department of State's authorities to ensure that foreign nationals who claim that they are "nonimmigrants" but who plan to overstay are not issued visas. Rather, as noted, Biden wants to restrict ICE enforcement generally.

Next, there is the assertion that "most contraband comes in through the legal ports of entry." Arguing that we should not erect barriers along the border because most contraband enters through the ports makes as much sense as arguing that you should not lock the front door because most burglars come in the back. If there is more that can be done to prevent the movement of contraband across the border, we should do it.

Further, such arguments ignore the fact that barriers are impediments to entry, allowing Border Patrol more time to respond to incursions; they will not prevent the entry of anyone with enough determination, and are not meant to. And, as I have previously noted:

Even accepting the discrepancies between drug seizures along the border and at the ports of entry as reflective of the actual flow of illicit narcotics into the United States, respectfully, that is how it should be, and is a fact that should be encouraged. I will be the first to admit that we do not know how many persons, or vehicles for that matter, cross the border between the ports of entry, because Border Patrol can only estimate the number of persons and vehicles that it does not see or seize. That said, we want to push drug smugglers to the ports of entry, because ... the capability to identify and to seize drugs at the ports (where we know exactly how many persons and vehicles enter) is higher. Given the profits involved, and the sophistication of the organizations that engage in illicit drug trafficking, no cartel or individual smuggler is going to come upon a fence and decide that it will not be moving its drugs to the United States. Instead, faced with such obstacles, it will opt to take the riskier route through the ports, where the likelihood of apprehension is higher. Good.

How exactly does Biden intend to respond to "the real threats to our security — drug cartels and human traffickers?" By tearing down barriers that keep them out? He never explains — it is simply a talking point.

Then, there is the statement: "Families fleeing the violence in Central America are voluntarily presenting themselves to border patrol officials." There are three points, here. First, this statement simply proves that the federal government should do more to plug the loopholes that promote illegal entry, not that barriers do not work. Second, barriers should, logically, direct those migrants to the ports of entry, where entry is safer for the migrants and more orderly for CBP than picking up large groups of aliens in the middle of the night in the middle of the desert. Third, Biden essentially makes the point that the Department of Justice has made in support of the government's use of military funds for barrier construction: that the wall is intended to stop the illicit flow of drugs, not migrants per se.

Finally, as a senator, Biden voted for the "Secure Fence Act of 2006", and most importantly, the "Obama-Biden Administration" built 130 miles of its own walls and fencing. If "a wall does nothing to address security challenges while costing taxpayers billions of dollars," as candidate Biden asserts, why did then-Senator Biden vote to build one, and why did the administration in which he served actually do so?

From his plagiarism of a speech by the then-head of the British Labour Party in 1987 to his more recent gaffes, Joe Biden's greatest enemy has all too often been Joe Biden. When it comes to his immigration proposals, however, Biden should know better. He has seen the failures of many of the proposals he now promotes, and actually had to help make the tough decisions that he now chides the president for.

I understand that such documents are simply intended to stir up the base. Joe Biden, however, should know better than to promote the immigration proposals that have his name attached. I cannot imagine the damage if this time, he is serious.

Topics: Politics