After years of avoiding questions on border security, Democrats have finally come to realize they can’t sidestep the issue.
The problem is that in an effort to make up for bad politics, many are holding onto bad policy.
How did we get here?
Well it all goes back to Stephen Miller, senior adviser to former President Donald Trump, who may have been the only person in the world to celebrate the arrival of COVID-19. That’s because, as The New York Times first reported in May 2020, Miller “had long tried to halt migration based on public health, without success. Then came the coronavirus.”
Under the guise of public health, the Trump administration utilized the World War II-era Title 42 provisions to close ports of entry to those seeking asylum along the U.S.-Mexico border. Keep in mind that these same ports of entry remained open to U.S. citizens, legal permanent residents, and trade. Also, if one could fly from Mexico to the U.S., they were fine.
Fast-forward to now.
Under Title 42, some 1.7 million migrants—most of whom were presenting themselves to U.S. Customs and Border Protection (CBP) officers seeking the asylum they are legally entitled to request—were expelled to Mexico or elsewhere. Since January 2021, there have been nearly 10,000 publicly reported instances of kidnappings, rapes, and violent assaults against migrants expelled under Title 42. And since a Title 42 expulsion comes with no formal detention or deportation record, cartels have been selling desperate migrants packages that allow for multiple attempts to cross, leading to a four-fold increase in recidivism. Title 42 has been great for cartels, terrible for everyone else.
After months of pressure from advocates and many Democrats, the Biden administration has done two things.
First, it is putting into place a plan to better manage migration at the border.
The administration has moved forward with a new rule set to go into effect on May 29 that would fast-track asylum proceedings for those who have a credible fear of persecution, and fast-track deportations for those who don’t. The rule empowers United States Citizenship and Immigration Services (USCIS) asylum officers, who are already adjudicating cases in the interior, to play a larger role at the border. This would allow those who demonstrate a credible fear of persecution to go through non-adversarial, expedited asylum proceedings. Those who do not demonstrate a credible fear would be quickly returned.
Furthermore, the administration has surged the resources and personnel it’s been sending to the border—enlisting FEMA to handle logistics, building new border infrastructure, and making use of billions in funds from the recent omnibus bill. Along the way, administration officials have engaged Mexico and other countries to address the root causes of migration and undermine the cartels’ operations.
Second, just days before the new asylum rule goes into effect, the Biden administration will lift the Title 42 restrictions.
Let’s be honest: If there is no public health emergency in airports, there is no public health emergency at ports of entry. (Not that I would ever claim our politics are intellectually honest.)
More importantly, by returning to Title 8—the same authority that CBP has used throughout history—as the primary tool to process and remove individuals who do not qualify for asylum, individuals will be “subject to additional long-term consequences beyond removal from the United States, including bars to future immigration benefits.” No such consequences exist under Title 42.
In other words, Title 8 is an actual border security measure that eliminates one of the cartels’ selling points that leads to high apprehension numbers.
While these are the right policies for a smarter border approach, the Biden administration has utterly failed in terms of laying out a clear vision on immigration policy. Right-wing Republicans who seek a return to the Trump/Miller approach have filled the vacuum, leading a growing number of Democrats and reform-minded Republicans to call for Title 42 to remain in place.
The political panic button was hit before the release of new Gallup data that found even though Democrats have never worried less about illegal immigration and two-thirds of Republicans are now concerned “a great deal,” independents’ concern “has been on the upswing, with those worried a great deal rising [to 39 percent] from 30 percent since 2018.”
Political necessity requires Democrats to get off the immigration dime.
Number one, President Biden needs to explain to the public why a functioning immigration system is fundamental to the health and safety of Americans and their families. The president should lay out his approach to securing the border and managing immigration (aligning the end of Title 42 with the implementation of new asylum procedures) within the existing, antiquated, system.
Which frames his second task: to engage Congress in a process that advances a first tranche of sustainable reforms needed to secure our borders and modernize our immigration system. While the time to advance reforms this year is limited, Congress is not starting from scratch.
Last Spring, Republican Sen. John Cornyn and Democratic Sen. Kyrsten Sinema introduced the Bipartisan Border Solutions Act. The bill is a political and policy blueprint for how Democrats and Republicans can come to the table on good border solutions. It streamlines border processing and improves access to legal services, all while providing the funding and personnel necessary to make reform happen quickly.
These types of reforms, paired with existing legislation that provides legal immigration pathways which address the growing labor shortage and permanent protections for Dreamers, farm workers, and Temporary Protected Status recipients, is smart policy and smart politics. Such an effort puts Democrats—and reform-minded Republicans—in a position to make the case that a return to Trump-era immigration measures would only exacerbate our problems.
A new coalition, the Alliance for New Immigration Consensus, stands ready to help. With partners ranging from Americans for Prosperity to the Business Roundtable and the U.S. Chamber of Commerce, along with the National Association of Evangelicals and the Episcopal Church, this alliance of organizations across the political spectrum seek a modern approach to securing the border and permanent legal protections for Dreamers, agricultural workers, and Temporary Protected Status (TPS) holders. Sensing the urgency of the moment, they are engaging Republicans and Democrats on the Hill and in the field, and making the case to voters across the nation.
The president needs to stop hoping the issue of immigration will disappear. He should take credit for the solutions that are in place, and not let Congress off the hook for advancing the solutions we desperately need.