Can we have a productive discussion about border security and immigration?

The Biden administration's border security proposals are serious, even if Biden is not.

The Biden administration has made a serious border security proposal, even if President Biden’s speech announcing the changes wasn’t serious.

In the speech, Biden attempted to shift the blame to Republicans for the border disorder his administration has persistently insisted doesn’t exist. 

According to Biden, the Republicans are to blame for two reasons: They didn’t support his comprehensive immigration reform proposal and opposed his request for more border security funding.

“Comprehensive immigration reform” is a Democratic euphemism for amnesty for those currently in the country illegally. I happen to favor it. But Republicans not supporting it isn’t an excuse for not enforcing the immigration laws as they presently exist, nor an explanation for the current border disorder. 

The claim that Republicans don’t support more funding for border security is stunningly fatuous. They haven’t supported Biden’s proposals for it because of what else was part of them. Such as having hearing officers rather than administrative law judges make the final determination of eligibility for asylum. There have been multiple GOP proposals for substantially increased border security funding.

Though roundly denounced by all sides of the immigration debate, the actual announced policy changes point in a useful direction: making legal immigration easier and illegal immigration harder.

There would be a humanitarian parole program established, whereby up to 30,000 immigrants a month from Cuba, Haiti, Nicaragua, and Venezuela could receive work authorization in the U.S. for two years. They would have to apply from their home countries. Those caught at the border or showing up requesting asylum would be rejected. Mexico has agreed to accept up to 30,000 of such rejectees a month.

According to the administration, a similar program for Venezuela has substantially reduced border apprehensions from that country.

The program is probably unconstitutional. The Constitution gives control over immigration to Congress. Congress has established immigration categories with rules, restrictions, and quotas. Administrative discretion through such things as humanitarian parole is supposed to be exercised in limited, ad hoc circumstances. Creating a program in which 360,000 people a year from these countries can apply for what amounts to a two-year work visa has all the characteristics of a new immigration category, which can only be created by Congress. The Obama administration's visa programs for dreamers and the parents of dreamers suffered the same constitutional flaw.

Nevertheless, the proposal does seem to be a good faith effort to make legal immigration easier and illegal immigration harder. The universal raspberries it received illuminates the barrenness of the current discussion and debate about border security and immigration, and the pressing need for a more productive one.

A productive discussion would involve honest and at least somewhat dispassionate consideration of three distinct questions that get conflated in the current cacophony. 

The first is how much immigration do we want on an annual basis? There are tens of millions, if not hundreds of millions, of people around the world who would like to live and work in the United States, temporarily or permanently. How many of them we want to accommodate on an annual basis involves many considerations, from capacity to economic need or benefit. The current statutory quotas are an ad hoc patchwork developed over the years, not the result of an overall evaluation or considered judgment.

The second question is what kind of immigration do we want? Current immigration law and policy gives preference to family unification. There are those who argue that the United States should emulate some other countries which give preference to workforce needs and skills. There’s little reason for the United States to limit high-skilled immigration, although we do. The economic need and effect of low-skilled immigration is a more complicated matter. And then there is the subquestion of the extent to which the United States wants to retain its historical role as a place of refuge and opportunity for those seeking a better life for themselves and their families.

The third question is, after the previous two questions have been answered, what enforcement regimen will keep the levels and kinds of immigration reasonably close to what the country wants? My own view, long expressed, is that mandatory use of the E-Verify system to electronically validate work eligibility is the most effective mechanism available. If the formal economy is cut off, the lure for illegal immigration would substantially abate. Any enforcement regimen can’t essentially give up on interior enforcement, as the Obama and Biden administrations both did.

Having such a comprehensive productive discussion about border security and immigration would be difficult in any circumstances given the passions the issue evokes on all sides. It’s probably impossible when the president is playing political dodgeball on the issue.

There can, however, be productive policy changes that improve things at the border a step at a time. The best hope for such changes seems to rest with Arizona Sen. Kyrsten Sinema. Her commitment to reducing border disorder appears genuine. 

She developed a sensible proposal with Republican John Cornyn to surge asylum processing resources to the border, so final asylum decisions could be rendered in a matter of months, not years. A substantial number of asylum applications that are finally adjudicated are denied. But the applicant gets to stay in the country for two or three years before that occurs. And many disappear in the interim. A quicker decision without being granted interim entry would dramatically decrease the incentive to show up at the border requesting asylum. 

At the end of the last Congress, she advanced a naked political deal with Republican Sen. Thom Tillis. Title 42, the public health provision allowing immediate rejection of asylum seekers at the border, would be extended for a year, in exchange for legal status for dreamers. 

She is now leading a bipartisan, or tripartisan since she has become an independent, tour of the border. Mark Kelly is also a part of the delegation.

This is for show. But it indicates a core of senators, from both sides of the aisle, truly interested in exploring whether there are steps that can be taken, within current political constraints, that improve border conditions and immigration policy. 

The politics of border security and immigration reform remain quite dim. But Sinema’s efforts offer at least a potential beginning of a beginning of getting something productive done.   

Reach Robb at robtrobb@gmail.com.