America Needs a Rational Policy to Manage Its Southern Border
July 23, 2022
Many Americans will find it difficult to remember a time when illegal immigration was not a central focus of national political discourse. Naturally, the public has grown tired of this complex and difficult issue, which policymakers have been unable or unwilling to resolve. I have personally struggled with what the best approach to immigration policy is and thus what needs to happen to fix what appears, at this point, to be an intractable problem. I have concluded that America needs a rational policy to manage its southern border, which it is lacking under the current administration. To arrive at a rational immigration policy, we must construct and apply a rational framework to better understand our current predicament.
To develop a rational framework for understanding what is happening, we must recognize that America confronts several distinct but related problems arising from southern immigration. The first problem is how to secure the southern border so that entry will be denied to drug traffickers, terrorists, and other individuals who would otherwise endanger our communities. The second problem is how we can protect our communities from similar individuals who have already entered the United States illegally given our failure to secure our southern border in the past.
Immigrants, whether they enter the United States legally or illegally, bring their skills, talents, and resources, and enrich our communities with their contributions to cultural diversity. At the same time, a massive inflow of immigrants, even those who do not pose an immediate danger to our communities, may still overwhelm local labor markets, driving down wages and working conditions, and may impose a heavy burden on public resources. Therefore, although we wish to see greater openness and the free movement of people across national borders, it is the duty of government to weigh the impact of its border policy on the communities it serves. This duty is especially great when economic desperation is the motivation for many immigrants seeking entry into the United States. As in so many areas of life, a tradeoff exists, which in this case involves, to some extent, a tradeoff between the well-being of citizens and that of non-citizens. A republican government thus has a responsibility to manage the inflow of immigrants consistent with the wishes and welfare of the governed.
A rational framework to assist us in understanding America’s immigration quandary also involves the recognition that the resources at the federal level for addressing the problem are extremely limited relative to the magnitude of the problem. The Migration Policy Institute (MPI) estimates that there were eleven million unauthorized immigrants in the United States in 2018 (MPI 2020: 1). Mexicans accounted for about half the total of unauthorized immigrants in the United States, and Mexicans and Central Americans together accounted for sixty-eight percent, or more than two-thirds, of the total figure (MPI 2020: 1, 6). The presence of so many unauthorized immigrants in the United States has forced the federal government to be selective in terms of arrests and deportations.
The Policy of Selective Deportation and Arrest as a Burden for State and Local Authorities
Under the Biden administration, this situation has produced an immigration policy that lacks consistency and that contains arbitrary elements. Moreover, the inability of the Biden administration to adequately address the problem has put pressure on state governments to use scarce public resources to offset deficiencies in the federal response. The consequence of the economic burden that has been placed on the states has been a worsening conflict between the states and the federal government that now threatens national unity.
The fact that the problem has outgrown the federal government’s ability to address it has been evident since the start of President Biden’s term in office. Indeed, during his campaign for President, Mr. Biden promised a 100-day moratorium on deportations. Its purpose was “to demonstrate [the President’s] commitment to overhaul ICE” (Parti 2022)–that is, U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement and removal operations. The Biden administration wished to use the deportation pause to “allow immigration leaders to reassess their deportation policy to concentrate limited resources on the most pressing threats” (Hackman 2021c). In response to the President’s action, U.S. District Judge Drew B. Tipton of the Southern District of Texas “temporarily blocked the Biden administration’s 100-day pause on deportations, saying it likely violated the executive branch’s legal obligations for immigration enforcement” (Hackman 2021d). Specifically, the court held that President Biden’s January 20 memorandum “to unilaterally stop deporting immigrants already with final orders of removal likely violated federal law” (Hackman 2021d). Decisions of this magnitude always carry costs, and in this case, the cost was borne by state and local governments that were forced to accommodate the Biden administration’s period of reassessment.
The policy of selective deportation under the Biden administration has not been confined to unauthorized immigrants already living in the United States. It has also been applied to immigrants attempting to enter the United States without legal authorization. Specifically, at the start of President Biden’s term, his administration “rescinded the government’s zero-tolerance policy that all adults should be prosecuted for crossing the southern border illegally, saying it was inconsistent with the department’s principle of exercising judgment and making individualized assessments in criminal cases” (Hackman 2021d). Again, this approach to deportation and arrest does not avoid the costs that state and local governments must bear due to an inflow of unauthorized immigrants. Furthermore, the focus on the most serious criminal cases, although presented as a humanitarian approach to immigration policy, is better understood as a pragmatic approach to address a problem that has outgrown the federal government’s ability to contain it.
The Biden Administration’s Initial Guidelines for Arrest or Deportation
Despite the Texas federal court’s ruling that halted the 100-day moratorium on deportations, the Biden administration still found a way to slow ICE’s deportation activity. The administration instructed the agency to shift its enforcement efforts to unauthorized immigrants it considered to have serious criminal records (Parti 2022). This approach sounds reasonable, but the question is whether it is enough to protect our communities. For example, the selective nature of the approach led ICE to postpone “at least one nationwide operation, known as Operation Talon, that was planned in the final weeks of the Trump administration to target immigrants with sex offenses” (Hackman 2021b). Many of these individuals would not have satisfied “the Biden administration’s arrest criteria because they only had misdemeanor convictions” (Hackman 2021b). President Obama adopted a similar approach to arrest and deportation based on selectivity but even he included significant misdemeanors. For example, after President “Obama deported a record number of immigrants in his first years in office, his administration issued a similar, though broader, set of enforcement priorities targeting immigrants with felony or ‘significant misdemeanor’ convictions” (Hackman 2021b). Hence, the Biden administration’s approach represents a departure from earlier administrations, both Democratic and Republican administrations, in the direction of reduced immigration enforcement.
In terms of illegal border crossings, the Biden administration has omitted as targets for arrest or deportation some unauthorized immigrants who also pose a danger to public safety. For example, the Biden administration has concentrated on unauthorized immigrants found to pose threats to national security or public safety, which include “people who have committed aggravated felonies,” such as “murder, rape and human trafficking, but not some of the most frequent offenses for which immigrants are arrested, including driving under the influence” (Hackman 2021b). Furthermore, the procedure for conducting arrests outside the Biden administration’s categories is cumbersome. For example, immigration officers “must seek preapproval from senior ICE officials in writing, a standard that requires them to gather police reports and other documents in support of their case” (Hackman 2021b). Overall, the scarcity of federal resources devoted to the problem means that immigration authorities will not pursue many unauthorized immigrants who are less serious criminal offenders but who nevertheless are likely to impose costs on state and local governments and the residents of the communities in which they reside.
The Biden Administration’s Revision of Its Guidelines for Arrest or Deportation
The Biden Administration’s selective approach to arrest and deportation has generated resistance even among ICE officers who believe that the initial guidelines for arrest and deportation limited their authority too much. The opposition led Homeland Security Secretary Alejandro Mayorkas to revise the guidelines to allow ICE officers “more discretion following complaints from ICE officers and some Republicans that the Biden administration’s initial approach was too restrictive” (Hackman 2021a). As Hackman (2021a) explains, immigration officers and Department of Homeland Security (DHS) agents were deeply upset because “they felt hampered [in] their ability to fully carry out immigration laws.” Hence, resistance to the Biden administration’s approach was even felt within the agency charged with enforcing the nation’s immigration laws.
The revised guidelines, which went into effect near the end of 2021, were less restrictive than the initial guidelines. The revised guidelines granted ICE officers “the latitude to decide which immigrants pose a public-safety threat, rather than [requiring them to] follow strict categories the administration put in place” in early 2021 (Hackman 2021a). DHS Secretary Mayorkas acknowledged that the initial guidelines were flawed, stating that the treatment of “people and questions of public-safety threats categorically like that actually is not effective and could lead to ineffective and unjust results” (Hackman 2021a). Unfortunately, guideline revisions are not enough to solve a problem of inadequate federal resources and the economic costs it imposes on state and local governments.
The inadequacy of the revisions became clear when Texas and Louisiana sued the federal government for implementing them. The state governments of Texas and Louisiana argued that even the revised “DHS guidelines impose[d] costs on state taxpayers by increasing law-enforcement needs or requiring that public services be provided to noncitizens” (Bravin and Hackman 2022). Earlier this month, the Fifth Circuit U.S. Court of Appeals in New Orleans ruled that the revised guidelines “might violate federal law because they [do not] require automatic detention of certain noncitizens who have been convicted of state crimes while their deportation cases are processed” (Bravin and Hackman 2022). Also, this month, the Sixth Circuit U.S. Court of Appeals in Cincinnati held in another case that the Biden administration guidelines for arrest and deportation resembled those of previous administrations, “which also faced the reality that the government lacks the prison space to detain millions of noncitizens eligible for deportation” (Bravin and Hackman 2022). The U.S. Courts of Appeals have thus recognized in their opinions that the selective approach to arrest and deportation is a pragmatic response to an insufficiency of resources devoted to the problem but that it is also most likely violative of federal immigration law. Simply put, Congress has not appropriated the funds necessary for the executive branch to enforce the nation’s immigration laws.
The ultimate source of this courtroom battle is the conflict over which level of government will bear the burden of a problem that has outgrown the capacity of either level of government to deal with it immediately. The ruling of the Fifth Circuit “blocked implementation of the DHS guidelines nationwide” (Hackman 2022), thereby shifting the responsibility back to the federal government to enforce federal immigration laws. In response, the Biden administration has asked the U.S. Supreme Court to “reinstate the guidelines while litigation continues in the lower courts” (Bravin and Hackman 2022). The Biden administration has argued that the Fifth Circuit’s judgment is “disrupting DHS’s efforts to focus its limited resources on the noncitizens who pose the gravest threat to national security, public safety, and the integrity of our Nation’s borders” (Bravin and Hackman 2022). Unfortunately, the Biden administration is all too aware of the resource constraints the federal government faces without recognizing that the state governments most affected by unauthorized immigration are similarly burdened.
The U.S. Supreme Court responded quickly to a request from the Biden administration for relief, but the deeper issue is one that will not be resolved in the courts. In its 5-4 decision, the U.S. Supreme Court rejected the “emergency request from the Biden administration to reinstate its immigration enforcement guidelines[,]” but, the Court “agreed to hear a case on their legality in December” (Hackman 2022). The legal question aside, the scope of the problem of unauthorized immigration and the existence of federal, state, and local resource constraints ensure that this issue will continue to be a source of great tension, threatening our national fabric until we have a Congress and a President that will pursue a lasting solution.
The Biden administration understands why the states are challenging federal immigration policies in court, but it is not recognizing its own contribution to the problem. For example, the Justice Department under President Biden has responded to the lawsuit as representative of “a ‘troubling trend’ of states suing Washington on the claim that federal policies were imposing costs on state taxpayers” (Bravin and Hackman 2022). By contrast, President Trump cooperated with the states that unauthorized immigration most directly affects. For example, near the end of President Trump’s term in office, Texas entered an agreement with DHS requiring the agency to consult the state prior to changing immigration policy (Hackman 2021d). Such cooperation is essential to ensure that states do not feel that the federal government has abandoned them or that it is neglecting its responsibility to enforce federal immigration laws at their expense.
The Biden administration does not acknowledge any problem with its policy of selective enforcement of the nation’s immigration laws. In defense of its selective approach to arrests and deportations, the “Biden administration has argued that Congress has never authorized enough funding to detain every immigrant in the country illegally, meaning Congress intends the government to use discretion in who it pursues” (Bravin and Hackman 2022). If true, then Congress has passed laws that it never intended to be enforced. If this statement does not suggest lawlessness, then what would suggest it?
The tremendous burden of enforcing existing immigration laws under present circumstances has influenced the way immigration cases are handled in court. As Bravin and Hackman (2022) explain, “ICE has [] been using the guidelines to argue for the dismissal of court cases against immigrants it deems not to be a priority, in an effort to reduce a backlog in the immigration court system that has grown to 1.8 million cases, according to Justice Department data.” Again, practical necessity, more than humanitarian considerations, are driving these decisions.
Arrests and deportations of unauthorized immigrants have significantly dropped under President Biden due to this policy of selective enforcement. For example, ICE made 74,000 arrests in FY2021 versus 103,000 arrests in FY2020 and 143,000 arrests in FY2019 (Hackman 2022). Additionally, ICE deported 59,000 unauthorized immigrants in FY2021, 186,000 in FY2020, and 267,000 in FY2019 (Parti 2022). ICE points out that even though the overall number of deportations fell under President Biden, the percentage of “convicted criminal removals increased to 66% of deportations in fiscal year 2021 from making up 56% of deportations in fiscal year 2020” (Parti 2022). This percentage increase appears far less impressive when one applies these percentages to the total number of deportations during these fiscal years. That is, the implication is that the number of convicted criminal removals fell from 104,160 in FY2020 to 38,940 in FY2021 despite the percentage increase.
How can America rationally manage its southern border?
To develop a rational policy for the management of America’s southern border, policymakers must adopt a long-term perspective. Adopting a long-term perspective means solving the problem of substantial unauthorized entry into the United States by means of illegal border crossings.
A substantial reduction in unauthorized entry into the United States will have two immediate benefits. First, federal and state law enforcement agencies are already burdened with the task of ensuring that unauthorized immigrants living in their communities do not pose dangers to American citizens and immigrants who are authorized to be in the United States. A substantial reduction in unauthorized entry into the United States will alleviate the pressure on these agencies that are currently forced to adjust their law enforcement efforts in response to a continual inflow of unauthorized immigrants. Policymakers can then concentrate on the existing population of unauthorized immigrants to determine which individuals pose threats to the public and should be removed and which individuals may be granted legal immigration status or placed on a path to citizenship.
Second, a substantial reduction in unauthorized entry into the United States will allow immigration authorities to focus their attention on points of legal entry into the country. Securing the border will shift the immigration debate to the subject that should have been the focus from the start, namely, how much legal immigration should America allow? This question is one that can only be answered by American citizens, speaking through their elected representatives. Critics of border security seem to fear that a secure border implies that no one will be allowed to enter the United States by way of the southern border. On the contrary, a secure border makes a rational policy discussion possible, allowing for greatly differing perspectives as to how permissive the standards of admission should be. Certainly, racism and hatred have no legitimate place in a national policy debate of this kind, and it is a mistake to think that advocates of border security are inspired by such motivations.
Why do so many opponents of a secure southern border view it as a threat? Consider other areas of life where security and orderly processes are routine matters. For example, airports have security checkpoints. No one likes to wait in line, but most Americans are patient when they make their way through airport security. Most of us would agree that it is better to have airport security guards identify passengers who are attempting to illegally carry weapons onto airplanes than to do away with security checkpoints and have such passengers removed after they have boarded airplanes. An even worse option would be to identify such individuals after takeoff. Screening passengers at an early stage in the travel process ensures a safer experience for everyone–passengers as well as airport and airline employees. Why do so many appreciate the value of law and order in their everyday lives but fail to recognize its value in the context of immigration?
The proponents of border security often emphasize the benefits to American citizens of establishing a secure border, which include greater security of life and property. Indeed, these benefits are significant, but perhaps the greatest benefit of a secure southern border will be enjoyed by immigrants who legally enter from the south. It will take time given America’s history of problems at its southern border, but eventually a presumption will develop that immigrants from Mexico and South America entered the United States legally, which will elevate their status in the United States, bringing an end to what may be regarded as second-class (non-)citizenship.
Among the most recent Presidential administrations, the Trump administration has been the most focused on finding a long-term solution to the problem of unauthorized immigration. Unfortunately, Congress has not appropriated the funds to ensure adequate border security. Doing so would make it possible at the southern border to halt most unauthorized immigration, expand legal immigration, reduce the population of unauthorized immigrants by various means, and end the legal and political conflict between the federal government and state governments over the issue of which level of government will bear the economic burden of unauthorized immigration. Until that day arrives, the American voter will continue to endure what seems like a permanent feature of American political discourse.
Sources
Bravin, Jess, and Michelle Hackman. “Biden Administration Asks Supreme Court to Rule on Immigration Enforcement.” The Wall Street Journal. July 8, 2022. Web.
Hackman, Michelle. “Supreme Court Rules Against Biden Administration’s Immigration Enforcement Guidelines.” The Wall Street Journal. Updated July 21, 2022. Web.
Hackman, Michelle. “Immigration Officers Will Have More Discretion Over Arrests, Deportations.” The Wall Street Journal. Updated September 30, 2021. 2021a. Web.
Hackman, Michelle. “Deportations and Arrests of Immigrants in the U.S. Illegally Fall Sharply Under Biden.” The Wall Street Journal. April 4, 2021. 2021b. Web.
Hackman, Michelle. “Biden Announces Pause in Deportations for Next 100 Days.” The Wall Street Journal. January 20, 2021. 2021c. Web.
Hackman, Michelle. “Biden’s 100-Day Pause on Deportations Blocked by Texas Judge.” The Wall Street Journal. Updated January 26, 2021. 2021d. Web.
MPI. Capps, Randy, Julia Gelatt, Ariel G. Ruiz Soto, and Jennifer Van Hook. “Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins.” Migration Policy Institute (MPI). December 2020. Web. Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins (migrationpolicy.org)
Parti, Tarini. “Arrests, Deportations of Immigrants in U.S. Illegally Fell in 2021.” The Wall Street Journal. Updated March 11, 2022. Web.
Photo: McSpadden, Russ. “New Mexico Border.” Attribution-NonCommercial 4.0 International (CC BY-NC 4.0). January 27, 2019. flickr.com.
Link to Photo: New Mexico Border | Photos and video footage of the U.S/Mexi… | Flickr
License for Photo: Creative Commons — Attribution-NonCommercial 4.0 International — CC BY-NC 4.0