Who Are The Real Radicals On Immigration?

Joe Biden ran for president as the anti-Trump, and his initial executive actions reflect that. On immigration, he has reversed or suspended a number of Trump policies—including the border wall and the “Remain in Mexico” program for asylum seekers—and announced a 100-day deportation freeze that applies even to violent criminals. (On January 26th, a federal judge issued a temporary injunction against the deportation order, but it’s unclear if that will make any difference.) He has also initiated a sweeping overhaul of federal immigration-enforcement priorities.

“U.S. Immigration and Customs Enforcement [ICE] is preparing to issue new guidelines to agents this week that could sharply curb arrests and deportations,” the Washington Post reported on February 7th. “Agents will no longer seek to deport immigrants for crimes such as driving under the influence and assault.”

Not surprisingly, many ICE officials are deeply concerned about these changes.

“They’ve abolished ICE without abolishing ICE,” one anonymous official told the Post. “The pendulum swing is so extreme. It literally feels like we’ve gone from the ability to fully enforce our immigration laws to now being told to enforce nothing.”

Meanwhile, Biden has unveiled a broader immigration-reform plan containing a massive amnesty program, a major increase in legal immigration, and virtually nothing of substance on enforcement. Left-wing activist Greisa Martínez Rosas happily proclaimed it “the most progressive legalization bill in history.”

Yes, elections do indeed have consequences.

Democrats insist that Biden is merely undoing the “radical” policies he inherited from Donald Trump. But it’s worth asking: Who are the real immigration radicals?

To better appreciate just how far the Democratic Party has shifted on immigration, consider a few historical nuggets.

In 1993, future Democratic Senate leader Harry Reid introduced legislation that would have ended birthright citizenship; significantly reduced legal immigration; denied entry to immigrants needing public assistance; tightened asylum rules; expanded the list of deportable criminal offenses; created tougher penalties for deportation violations, visa fraud, and alien smuggling; and increased the number of U.S. border-security personnel.

In his 1995 State of the Union Address, President Bill Clinton said the following:

“All Americans, not only in the states most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service[s] they use impose burdens on our taxpayers. That’s why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. In the budget I will present to you, we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace as recommended by the commission headed by former congresswoman Barbara Jordan.”

Speaking of the (bipartisan) Jordan commission—led by the late civil-rights icon and Democratic House member—it issued its final report on U.S. immigration policy in 1997. Among other things, the commission advocated reducing legal immigration in general and unskilled immigration in particular; focusing employment-based admissions on highly skilled workers; and ending chain migration by prioritizing nuclear-family reunification. It affirmed that “border control is a necessary, but not sufficient, response to illegal migration,” arguing that the most effective way to curb illegal immigration would be to establish an “employment authorization verification system”—what we now call E-Verify.

In 2006, a majority of Senate Democrats—including Barack Obama, Joe Biden, Hillary Clinton, and Chuck Schumer—voted for the Secure Fence Act, which authorized the federal government to build hundreds of miles of double-layered, reinforced fencing and other physical barriers along the U.S.-Mexico border.

In 2009, one of those Democrats delivered a remarkable speech emphasizing the need to address illegal immigration.

“The American people will never accept immigration reform unless they truly believe that their government is committed to ending future illegal immigration,” declared Chuck Schumer. “Illegal immigration is wrong—plain and simple.”

In the same speech, Schumer mocked a PC euphemism for “illegal immigrant”: “When we use phrases like ‘undocumented workers,’ we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose.”

He also drew a clear distinction between legal and illegal immigrants: “People who enter the United States without our permission are illegal aliens, and illegal aliens should not be treated the same as people who entered the U.S. legally.”

It is nearly impossible to imagine any national Democratic leader speaking that way about immigration in 2021.

Some might argue that President Trump radicalized Democrats with his own “far-right” immigration policies. Trump certainly made buffoonish and offensive comments about immigration—as he did about many other topics—and his policies often suffered from haphazard execution. Moreover, his disgraceful post-election behavior has made it easier for people to dismiss all his policies as extreme or illegitimate.

Yet a fair analysis would conclude that there was nothing extreme about the Trump administration’s immigration policies. Its most controversial action—the so-called zero-tolerance policy on illegal border crossings adopted by the Department of Justice (DOJ), which led to migrant children being separated from their parents—remains woefully misunderstood.

A single paragraph in a Congressional Research Service (CRS) report can help clear up much of the confusion:

“Criminally prosecuting adults for illegal border crossing requires detaining them in federal criminal facilities where children are not permitted. While DOJ and the Department of Homeland Security (DHS) have broad statutory authority to detain adult aliens, children must be detained according to guidelines established in the Flores Settlement Agreement (FSA), the Homeland Security Act of 2002, and the Trafficking Victims Protection Reauthorization Act of 2008. A 2015 judicial ruling held that children can remain in family immigration detention for no more than 20 days. If parents cannot be released with them, children must be treated as unaccompanied alien children and transferred to the Department of Health and Human Services’ (HHS’s) Office of Refugee Resettlement (ORR) for care and custody.”

During the Obama years, Central American illegal border crossers learned that bringing minor children with them would dramatically increase their chances of getting released from federal detention prior to their immigration hearing. This practice, known as “catch and release,” created a powerful magnet for illegal immigration from El Salvador, Guatemala, and Honduras in particular. A huge number of migrants simply disappeared into the interior of the country and never showed up for their hearing.

The Trump administration wanted to end catch and release—that’s why it embraced a zero-tolerance approach. Unfortunately, because of the tangled web of statutes and court orders mentioned in the CRS report, the only way to uphold the law against Central American illegal border crossers traveling with children was to separate the adults from the kids. As the report states: “The widely publicized family separations were a consequence of the Trump Administration’s zero tolerance policy, not the result of an explicit family separation policy.”

When a public outcry ensued, the administration changed course. In June 2018, roughly six weeks after the zero-tolerance policy became official, President Trump signed an executive order declaring, “The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” The order also instructed federal officials to expand the number of facilities available for family detention and to “prioritize the adjudication of cases involving detained families.”

Congress could easily resolve the underlying problem by passing a bill that allowed family units to be detained together until their immigration hearing. But Democrats have refused to support such narrowly targeted legislation. Instead, their proposed fix in 2018 would have effectively codified catch and release.

Under President Biden, catch and release is once again our unofficial policy. The new administration is also letting tens of thousands of asylum seekers enter the U.S. rather than wait in Mexico as their cases are adjudicated. At the same time, illegal immigration is surging to crisis levels. The crisis has been amplified by a policy shift south of the border: According to the Washington Post, “The Mexican government has stopped taking back Central American families ‘expelled’ at the U.S. border under a Trump-era emergency health order related to the coronavirus, a shift that has prompted U.S. Customs and Border Protection to release more parents and children into the U.S. interior.”

The more illegal border crossers that U.S. authorities release, the more they will encourage people in Central America to make one of the most dangerous migration journeys in the world.

Which brings us back to Biden’s broader immigration plan. For years, members of both parties have understood that any grand bargain on immigration would have to combine real, measurable, sustainable progress on enforcement with some type of qualified amnesty.

“The only way such an amnesty can work as policy—and be accepted as legitimate by the public—is if it addresses the reasons that such a large illegal population developed in the first place. Otherwise, today’s amnesty simply tees up tomorrow’s even bigger amnesty,” writes Mark Krikorian of the Center for Immigration Studies. “The radicalism of Biden’s approach is that it rejects both enforcement first and enforcement second in favor of enforcement never. To those who want assurances that the president will at least enforce immigration laws after an amnesty, the new administration’s answer is that of Judge Smails in Caddyshack: ‘You’ll get nothing, and like it.’”

Will the growing border crisis prompt Biden to reconsider? Surely he remembers the crisis that the Obama administration faced in 2014, when he was vice president. Today, we face not only a border surge, but also a global pandemic that has either directly or indirectly killed hundreds of thousands of Americans, destroyed millions of U.S. jobs, exacerbated our national suicide and opioid epidemics, and placed an enormous financial strain on states, cities, and towns across the country.

Most Americans support immigration policies that demonstrate both compassion and realism while upholding the rule of law. Right now, the Biden administration is not striking that balance. Instead, its policies are frighteningly close to open borders.