Op/Ed: Democrats and Trump Go “All In” on Immigration

S E E D E D   C O N T E N T

Below is my column on last week’s major developments on immigration and their implications for the 2020 election.

Here is the column:

If politics were poker, this week represents the moment  President Trump  and his opponents both went all in on immigration. The Supreme Court granted a wish for Trump by accepting a challenge to the Deferred Action for Childhood Arrivals program created by President Obama in 2012. That followed the first highly anticipated Democratic primary debates in which virtually all 20 candidates not only supported the decriminalization of illegal immigration but full medical coverage for undocumented persons.

Together, this sets up immigration as one of the most polarizing issues that will face voters in the 2020 election. If these and other Democratic pledges were actually implemented, they would place the United States on the far extreme of immigration policies. While often cited as having more enlightened systems, most of our European allies have rejected some or all of the immigration proposals by the Democratic candidates.

The two nights of debates produced few truly defining moments other than author Marianne Williamson dismissing all of the plans being offered by the other candidates and insisting she would simply “harness love” for political purpose. Most candidates were not ready to join Williamson in a harmonic convergence circle to realign the universe. Instead, they rushed to outdo each other on immigration policies, coming close to fulfilling conservative stereotyping of Democrats as the party of open borders.

With the Supreme Court now set to hear the appeal during its October term, a major immigration decision is likely to be issued before the 2020 election. Trump is arguing that, if Obama had unilaterally created the Deferred Action for Childhood Arrivals program after Congress refused to do so, then he should be able to unilaterally end it. He could well prevail. The strongest argument by challengers is that Trump failed to satisfy the “notice and comment” period that is needed. That step could be satisfied by the Trump administration without changing the outcome.

These issues will be debated in the context of a worsening immigration crisis. Earlier this year, Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi led Democrats in dismissing the crisis as purely “manufactured” by Trump to build public support for a border wall. Today, with a recent 32 percent increase in illegal crossings and the government reporting roughly 150,000 migrants stopped or arrested in a month, even Democrats acknowledge this crisis. While some South American countries like Uruguay and Ecuador have easier paths to citizenship, these proposed changes would essentially negate the most serious penalties for unlawful crossings. Yet, the political gravitational pull is clearly moving Democrats toward some of the most lenient immigration policies across the world.

Decriminalization

Prompted by debate moderator Jose Diaz Balart, the candidates largely supported decriminalization of illegal immigration.  Kamala Harris  declared that an undocumented immigrant is a “civil violation” and “not a crime.”  Elizabeth Warren ,  Julian Castro , and others on the debate stage also have embraced decriminalization, essentially by eliminating Section 1325 of the Immigration and Nationality Act to make unlawful entry a civil violation, even if you cross the border without papers. But other Western countries like England and Germany, indeed most countries, criminalize unlawful entries. European countries like France are pushing for greater criminal penalties not only for legal immigrants but for those who assist them.

No deportation

The decriminalization of unlawful immigration alone simply does not constitute an open border policy, since migrants can still be deported under civil provisions. But many of the candidates also have voiced opposition to deportation for a wider and wider array of undocumented workers. Most candidates agreed that, if someone had not committed a criminal offense beyond unlawful entry, they should not be deported.

European countries, however, actively deport undocumented migrants. Germany is pushing forward a law allowing for expedited deportations of immigrants who fail to establish asylum claims, and even making it a crime to inform migrants of pending deportations. France has called for more deportations across Europe while expediting its own deportations. Other nations already expedite deportations or are moving toward that. 

Full health benefits

Every candidate, when asked about health care for the undocumented, agreed to providing full medical benefits under ObamaCare. Estimates place the cost of medical care for the undocumented at nearly $20 billion a year through emergency Medicare payments and other federal funding. Estimates on the costs of expanding that to fully cover all 11 million or more undocumented persons, run into the hundreds of billions of dollars. By pursuing such a change, the candidates are at odds with Obama, who not only deported a record number of immigrants during his two terms but rejected the case that ObamaCare would cover the undocumented.

Birth citizenship

All of the candidates have supported birthright citizenship for children of undocumented persons. Yet, a  national poll shows that less than half of Americans at 48 percent support such citizenship for the children of those living here illegally. The support rises significantly for noncitizens here legally. Although rarely reported, the United States is in a minority of some 30 countries that recognize such birthright citizenship. The “jus soli” rule of right of soil is rejected by our closest allies in Europe and most other countries that follow the “jus sanguinis” rule of right of blood.

The current position of Democratic candidates on this also contradicts prior positions of party leadership. In 1993, former Senator Harry Reid introduced legislation to limit birthright citizenship to the children of American citizens and legal residents. Then there remains an unresolved question of constitutional law on whether such citizenship is guaranteed under the 14th Amendment. If so, then a constitutional amendment would be required for the United States to join most of the world in rejecting claims that birth on American soil makes a child an American citizen.

Democrats have also favored drivers licenses, state scholarships, and even some voting rights for undocumented persons. At the same time, they oppose a move by the Trump administration to give favored status to immigrants with needed skills, such as doctors, in securing citizenship. This is a policy widely practiced in Europe and other countries. Together, the aggregate of all these policies would make the United States one of the most open and permissive countries for undocumented migrants.

Trump and the Democratic candidates now appear locked into positions on the extremes of immigration policy. In the middle of this battle are the voters, who will be asked to decide not just on the next president but on the very meaning of and conditions for American citizenship in this era.

Jonathan Turley is the Shapiro Public of Public Interest Law at George Washington University. You can follow him on Twitter  @JonathanTurley .