Presidential candidate Beto O'Rourke's campaign proposal on immigration — which came out earlier this week, joining Julian Castro's as the first detailed immigration plans in the Democratic primary field — is an acknowledgment of an important truth that leading Democratic candidates have been loath to acknowledge: Immigration, right now, is an executive-branch issue rather than a legislative-branch issue.
O'Rourke's plan focuses on curtailing immigration enforcement — in particular, all but eliminating immigration detention — and focusing instead on building up immigration courts and case management systems for newly arriving asylum seekers, while returning Immigration and Customs Enforcement (ICE) arrests and deportations of immigrants already living in the US to the constraints of President Barack Obama's last years in office. None of these are things he claims he needs Congress to do, or at least to start doing.
Proposals for "comprehensive immigration reform" have been kicking around in Congress for over a decade, and the politics of the proposal, which centered on a trade-off between increased border security and legalization of current unauthorized immigrants, have grown stale. Even as Republicans have moved to the right on the issue under Donald Trump, Democrats have grown leery of any stepped-up enforcement of immigration laws — and shown increasing enthusiasm for scaling immigration enforcement down.
O'Rourke is leaning into that enthusiasm. In Congress, he took a local approach to immigration, focusing on his border district and his El Paso constituents. As a candidate for Senate and now president, he's been criticized for making gauzy appeals to a vision of America instead of real policy proposals that might alienate voters. This proposal (for better or worse) is a bridge between the two. While there is some El Paso-style attention to ports of entry and border staffing, it's mostly a policy in line with a national progressive agenda on immigration, to the extent that one exists.
O'Rourke's proposal doesn't have any single plank as radical as Castro's, which proposes getting rid of the federal law that makes it a crime to enter the US illegally. Instead, it has a barrage of proposed "day one" executive orders that would radically restrict immigration enforcement — amounting to a bigger shift than even the one President Trump made in his first weeks in office, when he signed a series of executive orders (culminating in the first travel ban) that have set his agenda on immigration ever since.
The executive-first strategy reveals another divide in Democratic immigration ideas, though. Many people can agree on reversing Trump's unprecedented actions, like his efforts to crack down on asylum at the US/Mexico border and to rescind deportation protections for over a million immigrants. But when it comes to addressing the immigration regime that predated Trump — one that, under Obama, resulted in record numbers of deportations of immigrants living within the US — the path forward gets a lot murkier, and the most radical proposals raise serious concerns about politics and practicality.
O'Rourke is promising to make even more aggressive use of early executive orders than Trump did
In contrast to other domestic-policy issues (like health care and education), on which candidates' proposals are essentially "ideas for bills Congress should pass," immigration is an area where the executive branch has a lot of discretion to set policy directly.
The rise of mass immigration enforcement and widespread deportation under the Bush, Obama, and Trump administrations happened in the absence of any new immigration laws. Obama used executive authority to protect hundreds of thousands of unauthorized immigrants from deportation through the Deferred Action for Childhood Arrivals (DACA) program; Trump has used executive authority to ban people from several countries from entering the United States, force thousands of Central Americans to wait in Mexico for their asylum hearings (often at personal risk), and detain record numbers of immigrants in the US.
O'Rourke's plan exploits the executive branch's power on immigration, with proposals for several "day one" executive orders. It's an awfully ambitious slate even for the first month of a presidency, much less the first day; the Trump administration issued three major executive orders on immigration within a week of inauguration, but the most consequential of those (the first version of the travel ban) was too slapdash to stand up in court.
Some of O'Rourke's proposed executive orders are just reversing Trump policies, like ending the practice of "metering" — by which US officials restrict the number of asylum-seekers allowed to enter legally at ports of entry each day — and the Migrant Protection Protocols (the "Remain in Mexico" program). O'Rourke also promises to use executive orders to "end family separation," which the Trump administration abandoned as a widespread practice in June 2018 but which advocates allege is still happening more frequently than it did under President Obama.
O'Rourke promises to use executive orders to protect from deportation DACA recipients and immigrants with Temporary Protected Status — whose protections from deportation the Trump administration is trying to strip, but who have been saved (at least for now) by federal judges ruling against the president. (If the lawsuits over those programs are still ongoing in 2021, protecting DACA and TPS recipients would be as simple as dropping the lawsuits.)
But the plan also promises to protect the parents of DACA recipients from deportation, which is much less simple. It's not clear if O'Rourke would create a new program to protect those parents from deportation — going further than Obama's failed efforts to expand deferred action in 2014, and inviting a lawsuit — or if he would simply instruct ICE agents not to "prioritize" them for deportation (an approach Obama tried to take in his first term with young unauthorized immigrants, but which wasn't always followed on the ground).
Even more aggressively, O'Rourke promises to use executive orders to all but end immigration detention by requiring that immigrants not be detained unless they had been convicted of specific crimes that posed a community danger. And he would order the federal government not to sign any new contracts with private prison companies for immigration detention (private facilities currently make up the overwhelming majority of immigration detention), while providing for existing contracts to be wound down.
If it's implemented as promised, this would be radical — and disruptive. Immigration officials would likely resist it, and errors could be made. For one thing, it might be hard to square the executive order with recent Supreme Court rulings hardening the use of mandatory detention for certain immigrants.
This is the downside of executive action (as the Obama and Trump administrations have shown): They don't have to be thoroughly planned before being implemented, they often rely on the discretion of agents who may not agree with the aims of the policy, and they're susceptible to challenge in court by ideologically opposed state governments.
A lot more money to address asylum-seekers in the US — and the promise of $5 billion (mostly from elsewhere) to aid Central America
Mixed in with all the policy changes O'Rourke is promising on "day one" are a set of priorities for how the executive branch should spend its money — something the president has some control over (as Trump has demonstrated), but where ultimate approval or permission usually has to come from Congress.
In lieu of more border barriers, O'Rourke wants to staff up at ports of entry — noting that's how the majority of drugs are smuggled into the US, but also with an eye toward facilitating trade (reflecting his roots in El Paso, one of the biggest ports along the border).
Moving funds to address the problem is, essentially, O'Rourke's answer to the current crush of families at the US/Mexico border. Specifically, O'Rourke wants to staff up on asylum officers to screen migrants and court officials to process their claims — not just immigration judges (who have staffed up under Trump, though the backlog of cases continues to grow), but clerks and interpreters as well. In lieu of detention — which makes it faster to process asylum seekers through court hearings, though sometimes at the expense of due process — O'Rourke wants to fund alternative programs and "robust" access to counsel.
O'Rourke, like Castro before him, doesn't address what ought to happen to the many migrants who ultimately don't prevail with their asylum claims — since, even with generous jurisprudence and support, available evidence suggests many will not do so.
Instead, O'Rourke — again like Castro — presents investment in the Northern Triangle countries from which most current migrants are coming (Guatemala, Honduras, and El Salvador) as the long-term solution. The O'Rourke proposal would send $5 billion in investment to those countries, though most of that would be committed by NGOs and international bodies, not the US government.
And while the O'Rourke plan gets into some specifics about ways that money could be best directed — like climate mitigation assistance for farmers in Guatemala — it doesn't have a solution to the parallel problem of elite impunity and corruption, which have eroded Central Americans' faith that their current governments will protect them and made it easier to decide to leave. The O'Rourke platform has some strong language for Central American elites, warning that elites who want to send their children to school in the United States ought to be better citizens of their own countries — but it's not at all clear how the US president could make this happen.
A promise to "put the full weight of his presidency" behind immigration reform that makes citizenship easier to get
With all these executive action proposals, legislation takes a back seat in O'Rourke's proposal — even though his campaign stresses, as Obama did and as Trump has, that Congress needs to step in to restore a long-term equilibrium.
O'Rourke promises to put "the full weight of his presidency" behind an immigration bill in the first 100 days of his administration, notably different from promising to pass a bill, or even introduce one. (Obama, by contrast, promised to introduce an immigration bill in his first year — and then broke that promise, earning distrust from immigration advocates that took years to subside.) But beyond the now-standard Democratic promise to pass a bill that allows the 11 million unauthorized immigrants currently in the US to apply for legal status and ultimately citizenship, and to expedite legalization and citizenship for DACA recipients and TPS recipients, there isn't a complete bill framework here.
Part of that is because the old framework of "comprehensive immigration reform" that trades increased border enforcement for a legalization program for current unauthorized immigrants has fallen apart. A large chunk of the Democratic base now opposes increased border enforcement even as a trade-off for broader reform. And the base is less interested in changes to the legal immigration system than in protecting the status quo from efforts by Trump and Republicans to reduce family-based immigration.
O'Rourke does have some interesting proposals. He's adopted the call raised by immigration lawyers and judges to turn immigration courts into an independent Article I court, rather than keeping them under the direction of the Department of Justice (and subjecting their decisions to the precedent-by-fiat of the Attorney General). He's proposing a "community visa" that would allow communities to sponsor migrants, a version of the Canadian refugee system, which allows private citizens or organizations to sponsor and resettle refugees. And he has several suggestions that would make it much easier for immigrants to become citizens, like sending them pre-filled application forms as soon as they qualify and waiving the application fee.
These proposals dance around the edges of the big trade-off questions in immigration reform: What level of increased enforcement would be acceptable, if that enforcement no longer threatened 11 million people? Should the US be prioritizing immigrants with family ties here in the country, or people who already have needed skills (or the education and English-language faculty to integrate more quickly)?
There's a reason for that. This isn't a vision for a new immigration system. It's a proposal for a president to arrive in office and immediately start pushing immigration policy far in a dove-ish direction — maybe further than the system can go.
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