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Democrats Under Pressure: Political Calendar Exposes Ideological Differences on Immigration
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Democrats Under Pressure: Political Calendar Exposes Ideological Differences on Immigration

July 25, 2019
Policy Beat
By Muzaffar Chishti and Jessica Bolter
Nancy Pelosi and Alexandria Ocasio-Cortez

House Speaker Nancy Pelosi and freshman Rep. Alexandria Ocasio-Cortez. (Photos: Gage Skidmore and Ståle Grut/NRKbeta, modified)

The glow that characterized the Democratic Party’s seemingly unified position on immigration after it recaptured the House in the 2018 mid-term elections is fading fast. Where once it was enough for the party to stand united against the Trump administration’s enforcement-only immigration policies, such a position is not enough in the absence of an affirmative agenda to address the chaotic reality unfolding at the U.S.-Mexico border and to fix the badly strained immigration system.

Differences among centrists and liberals in the Democratic Party largely went unnoticed during the first two years of the Trump administration due to several factors, including their show of unity in denying President Trump funding for his border wall. This unity was reinforced in the wake of a record 35-day partial federal government shutdown that began in December 2018, when congressional Democrats held fast and forced the White House to dubiously declare a national emergency to tap other funds for the proposed wall. In addition, the perceived contrast between the Democrats and an administration whose immigration policies are seen by many as uncaring, if not cruel—and a president whose anti-immigration narrative is sharply and frequently expressed—masked chasms within the party.

Yet emerging fissures have started to be exposed, most notably with the first-round presidential primary debates and the heated controversy surrounding an emergency border spending bill negotiated in June, which pitted House Democratic leadership against the most liberal wing of the Democratic caucus and House and Senate Democrats against each other. At one side of the party are calls to #AbolishICE, decriminalize illegal entry into the country, close detention facilities, or strip federal immigration enforcement agencies of resources; at the other are centrist and conservative voices who argue that moving the party to the left on immigration could cost it dearly during the 2020 general election. As the presidential calendar accelerates and Congress is confronted with new spending and other questions over the administration’s immigration priorities, how the party navigates the wide gulf in views is likely to constitute an ever-more pressing challenge for House Speaker Nancy Pelosi and other Democratic leaders.

Threading the Needle on Immigration

Drawing on their success in the 2018 elections, when Democrats captured the House by flipping 41 seats, party leaders had hoped that the immigration issue would lose urgency in the national political debate. To them, the president’s relentless drumbeat on immigration had, after all, failed to pay off for him in the midterms. Their assumption was that Trump would ease up on the issue, giving Democrats a window to focus on other important domestic priorities. Trump, however, offered no such reprieve, returning again and again to the topic that he believes helped get him elected and remains the touchstone with his conservative base. As it becomes increasingly obvious that the president plans to use as the centerpiece of his re-election campaign the administration’s aggressive attempts to increase border security and immigration enforcement while also limiting legal immigration, the topic will undoubtably shape the 2020 general election. Indeed, Trump will certainly use his administration’s victories in shaping policy to suggest that Democratic challengers stand for open borders and illegal immigration, positioning himself as the rule-of-law candidate. After a number of Democratic presidential candidates at one June debate raised their hand when asked if they would extend health care to unauthorized immigrants, the president tweeted: “How about taking care of American Citizens first!? That’s the end of that race!”

Notwithstanding some consensus on the health-care question, immigration has emerged as a distinguishing issue for the flurry of Democratic presidential candidates. Given the administration’s hardline immigration policies, taking the strongest activist stand in opposition has become a way for Democratic hopefuls to signal the purity of their contrasts with the president. In the process, any position that edges into nuance can be spun by activists as siding with Trump.

The debate around decriminalizing illegal entry offers one example. As an issue, it has been bubbling underneath the larger immigration debate for some years, but surfaced to national attention only after former Housing and Urban Development Secretary Julián Castro challenged his fellow Democratic presidential candidates to support such decriminalization. His remarks, coming during the first primary debate on June 26, especially took on former Rep. Beto O’Rourke, a fellow Texan who opposes blanket decriminalization. Eight of the ten candidates in the second primary debate that followed the night after the tense Castro-O’Rourke exchange said they supported decriminalization, the only outliers being Sen. Michael Bennet (D-CO) and former Vice President Joe Biden.

While the argument for repealing Section 1325 of 8 U.S.C., the statutory provision that makes illegal entry a crime, has evolved over time, it currently revolves around its relationship to the phenomenon of family separations at the U.S.-Mexico border. During a family separation pilot program in 2017 and then widespread occurrence in April-June 2018, the government used 1325 to refer parents who crossed illegally with their children to the Justice Department for prosecution, causing separation from their children, who could not be detained in criminal custody. Castro pointed out this connection during the debate.

O’Rourke failed to offer a convincing response on this point, suggesting the need for broader systemic reform. Neither he—nor anyone else on stage—made the point that Section 1325 has been part of U.S. law since 1929 and no administration, until 2017, had used it if it would result in the separation of families. Thus, the more relevant issue is the current administration’s use of discretion rather than the statutory provision itself. In addition, no one made the point that reports have indicated the administration is still separating children from families without using Section 1325, instead basing separations on the idea that the parent poses a danger to a child, or similar justification.

Ultimately, even if a decriminalization supporter were to be elected president, following through on the promise would require a daunting political fight that would likely not get to the root of the concerns raised. Some presidential candidates, such as Sen. Elizabeth Warren (D-MA), seem to have realized this. Warren’s immigration platform calls for decriminalization of illegal entry, but also details how, in the interim, her administration would make use of executive authorities and prosecutorial discretion to achieve similar results.

These positioning issues will likely continue to arise with other immigration policies, such as proposals extending “Medicare for All” to unauthorized immigrants. That particular issue may not reveal chasms in the primaries, but it will certainly return in the general election. Democrats thus face the classic challenge of whether to emphasize stances that will help them in the primary or general elections, a particularly potent dilemma for Democrats dealing with immigration. The stances many have taken on immigration reveal the underlying political pitfall in adhering to the activist base’s demands on immigration: in bowing to a litmus test, without offering any qualifiers, Democratic candidates will have a difficult time articulating a balanced immigration platform that may prove more appealing to the broader public in the general election.

Splits over Border Funding

The emergency border spending bill that Congress passed in late June was the first prominent example that concretely demonstrated the cracks that have emerged in the Democratic caucus since it regained control of the House and now faces the burden of developing and passing legislation. This spending bill was deliberated under massive pressure, in the middle of surging migration at the U.S.-Mexico border and just as the Office of Refugee Resettlement (ORR) was running out of money to fund services for unaccompanied children in its shelters. It was considered “must-pass” legislation by the administration, critical to providing the necessary support for children in custody. But it also forced members of Congress to take a stand on contentious elements of the bill, while also pressing their own policy priorities.

Its passage was subject to at least two sets of disagreements. The first one was between House Democrats and Senate supporters of the Republican-influenced (but still bipartisan) bill that came out of that chamber. House Democrats generally saw the bill as funding too many of the administration’s enforcement priorities, such as troops at the border and overtime salaries for U.S. Immigration and Customs Enforcement (ICE) agents. The second was among the Democrats in the House over how many policy priorities could be inserted into a single spending bill—the more liberal wing unsuccessfully pushing for more curbs on how the money could be used. Ultimately, the Senate bill was the only one that could get through both chambers, against the will of members of the Congressional Progressive Caucus.

While the bills produced by each chamber appropriated similar amounts for ORR, ICE, and U.S. Customs and Border Protection (CBP), the differences lay in whether funding was provided for other enforcement agencies, and in the conditions imposed on the use of funds. The final $4.6 billion bill met many Democratic priorities: it dedicated almost two-thirds of that funding to providing care for unaccompanied children in ORR custody, provided no funding for increased detention beds or a border wall, and restricted funds appropriated to ICE and CBP from being transferred for enforcement purposes. However, it did not include some of the higher standards of care that Democrats had pushed for children in CBP and ORR custody, while it did fund Defense Department missions at the southern border. Most Democrats accepted the bill as a compromise that would alleviate some of the perilous conditions for recent migrants, including children, detained at the border. But the liberal wing saw it as a capitulation to Republicans. Ninety-five House Democrats voted against the bill; even the leadership of the Democratic caucus was divided.

The liberal wing’s reactions to passage of the bill further deepened the divide that had emerged during the debate. Rep. Norma Torres (D-CA) called Democrats who voted for the Senate bill “Trump Democrats,” and Rep. Alexandria Ocasio-Cortez (D-NY) called the legislation a “blank check” that included “just a verbal pinky promise” that funds would be used as directed. The bill was not a blank check for enforcement, but the disagreements compromised Democrats’ leverage to include stronger provisions in the bill in the face of a united Republican conference in the Senate and House, ultimately making it weaker than any of them may have wanted. In the days after the bill’s passage, House and Senate Democrats pointed the finger at each other, and Pelosi faced questions over her continuing ability to keep House Democrats united.

Democrats’ Future on Immigration

Democrats no longer have the luxury to simply oppose the administration’s immigration policies, convenient as it may have been in unifying the party so far. They are beginning to sense the political imperative of offering their own proposals for immigration reform.

Recognizing that and following the recent emergence of splits between liberal and more conservative Democrats, party leaders have introduced bills that begin to outline more proactive immigration agendas, with provisions that appeal across the party divide. In the Senate, Jeff Merkley (D-OR) and Chuck Schumer (D-NY) have authored legislation that would require state court or child welfare officials to approve any family separation at the U.S.-Mexico border, would raise standards of care for migrants held in CBP and ORR custody, and would expand migrants’ access to counsel. In the House, a bill from Homeland Security Committee Chair Bennie Thompson (D-MS) would prohibit family separations in most cases and raise standards of care, as well as establish in-country refugee processing programs in El Salvador, Guatemala, Honduras, and Mexico. A compromise struck July 25 between House leaders and centrists indicated that they may have found an even more attainable starting point: pushing a bill focusing on immigration oversight and accountability in the week before the August recess, leaving more contentious subjects for the fall.  

While none of these bills by themselves appear likely to become law, they offer a sign congressional Democratic leadership is starting to think seriously about how to unify the party on immigration. If Democrats can have a real, meaningful debate on these bills, they may have a better chance of developing a unified, affirmative agenda with pragmatic, though modest, provisions that could potentially be attached to future must-pass appropriations bills. And if it includes provisions that advance smart and effective enforcement ideas that Democrats can support, the momentum could lead to a more balanced national debate over immigration.

National Policy Beat in Brief

Department of Homeland Security Expands Expedited Removal. A new regulation that took effect July 23 would increase the number of unauthorized immigrants eligible for expedited removal—fast-track deportations without a hearing before a judge. The Migration Policy Institute (MPI) estimates that the new Department of Homeland Security (DHS) policy would affect around 297,000 noncitizens who entered the United States illegally and have less than two years of residence. Previously, expedited removal was limited to unauthorized immigrants arrested within 100 miles of a land border who entered illegally and had been in the country for two weeks or less, as well as people who entered illegally by sea less than two years prior. The American Civil Liberties Union (ACLU) announced that it intends to sue the administration over this new regulation.

New Regulation Bars Asylum for Most Migrants at U.S.-Mexico Border. DHS and Justice Department published a new interim final rule, effective July 16, that bars all migrants who arrive at the U.S.-Mexico border from applying for asylum, unless they had applied for asylum and were denied in one of the other countries they passed through on their way to the United States. “Severe trafficking” victims are also exempted from the bar. Those barred from applying for asylum may apply for “withholding of removal”—a form of temporary protection under U.S. law. This form of protection requires a higher standard of proof to show that a migrant’s life or freedom would be threatened in his or her home country and provides no pathway to become a permanent resident. Migrants granted protection can be returned to a third country at any time, or to their home countries if the conditions they were fleeing change. Those who are not eligible for either asylum or withholding of removal will be deported.

Two lawsuits were filed the day the rule went into effect, one by the ACLU in the Northern District of California on behalf of nonprofit organizations that defend asylum seekers. The other was filed by immigrant advocacy and assistance organizations in the Washington, DC district court. Both lawsuits argue that the rule violates federal immigration law and the law governing how regulations are promulgated, and the one filed in DC argues that the rule is also unconstitutional. The two federal courts split on July 24, the California judge issuing a preliminary injunction blocking the administration from implementing the new bar on asylum, the D.C. one declining to block it.

Citizenship Question Will Not Be Included on 2020 Census. On July 11, President Trump announced that despite his administration’s attempts to fight for the inclusion of a citizenship question on the 2020 Census, practical challenges (the need for the census questionnaires to be printed by a certain date) would make it impossible to do so. The Supreme Court ruled on June 27 that while the addition of the question was not unconstitutional or unlawful, the Commerce Department needed to provide a better reason to justify the inclusion of the question. Trump initially tried to pressure the Justice and Commerce Departments to continue fighting for including the question, but it became clear that the legal challenge would take too long to be resolved.

Instead, the president signed an executive order, also on July 11, that directs executive-branch agencies to share the necessary data with the Commerce Department so that the latter can determine citizenship status through matching of agencies’ data. Much of such data was already being shared, or agreements were being negotiated to do so. Privacy laws protect the Commerce Department from releasing the “matched” data back to other departments, meaning it cannot be directly used for immigration enforcement purposes. However, the executive order notes that it might be used for redistricting, estimating the size of the unauthorized immigrant population, and for broadly shaping immigration policies.

Agreement with Mexico to Prevent Tariffs Leads to Expansion of MPP. The administration has begun to expand its Migrant Protection Protocols (MPP) following a June 7 agreement with Mexico that provided for this step, which Mexico signed in order to avoid massive tariffs being levied on its exports to the United States. Not only has DHS increased the number of migrants it is sending back to Mexico from the San Diego and El Paso Border Patrol sectors to await their U.S. immigration court hearings, but on July 10 it started sending migrants back from Laredo, Texas, to Nuevo Laredo, in Mexico’s Tamaulipas state. Tamaulipas is one of Mexico’s most violent states—directors of migrant shelters advise migrants not to go outside because of the danger of being kidnapped—and the U.S. State Department advises Americans not to travel there. While there is no immigration court near Laredo, the U.S. government is setting up makeshift immigration court facilities on the U.S. side, where judges will videoconference in to conduct hearings. Separately, at the beginning of July, Mexico, with the assistance of the International Organization for Migration, started busing Central Americans back to their home countries who choose to leave.

Southwest Border Apprehensions Drop in June. Between May and June, the number of migrants apprehended at the U.S.-Mexico border dropped 29 percent, from 133,000 to 95,000. The numbers in June were still among some of the highest monthly apprehensions in the past decade, but also represented the first time so far in calendar 2019 that monthly apprehensions have decreased. The decrease is likely due to a combination of increased enforcement actions by Mexico, an expansion of MPP by the United States, and the natural drop in migration that occurs when the weather heats up. In the El Paso sector, where MPP is in effect, apprehensions dropped 55 percent, while in Rio Grande Valley sector, where it is not, they dropped 11 percent.

Federal Judge Rules Asylum Seekers Must Receive Bond Hearings. In a class action lawsuit, a U.S. district judge in the Western District of Washington on July 2 issued a preliminary injunction in Padilla v. ICE, blocking the implementation of Attorney General William Barr’s April 2019 decision that asylum seekers who entered the United States illegally and passed a credible-fear interview were not eligible to be released from immigration detention on bond. The district judge found that denying class members eligibility for bond was a violation of their constitutional right to due process. She ordered that, effective July 16, such asylum seekers will be entitled to a bond hearing before an immigration judge within seven days of requesting one, and DHS will face the burden of proving that migrants should not be released because they are a flight risk or danger to their community; if they do not receive a hearing within seven days, they will be released, without posting a bond. On July 22, a three-judge panel of the Ninth U.S. Circuit Court of Appeals allowed most of the injunction to stand, but blocked the part placing the burden of proof on DHS and requiring migrants’ release if they go seven days without a hearing.

House Passes Bill to Remove Country Caps for Employment-Based Green Card Recipients. A bipartisan House majority on July 10 passed, 365-65, the Fairness for High-Skilled Immigrants Act, which would remove country caps on the annual allotment of employment-based immigrant visas (otherwise known as green cards), and would raise the caps from the current 7 percent level to 15 percent on family-based green cards. The current caps on employment-based green cards mean that prospective immigrants from countries that send many high-skilled immigrants to work in the United States, such as China and India, face decades-long delays in receiving a green card. The bill now moves to the Senate, where it has bipartisan support; however, opposition most notably from Sen. Rand Paul (R-KY), but from other senators as well, makes its path there unclear.

Justice Department Enacts Rule to Increase Attorney General’s Ability to Set Precedent in Immigration Courts. The Justice Department published a regulation on July 2 that increases the attorney general’s power to designate precedent-setting immigration court decisions. Under the new rule, the attorney general can order any decision issued by the Board of Immigration Appeals (BIA) decision to become binding. Previously, a decision could become binding only if a majority of the BIA’s 21 members approved.

State/Local Policy Beat in Brief

New Jersey State Government to Reclaim Role in Refugee Resettlement. New Jersey Governor Phil Murphy announced on July 4 that the state government would take back control of the refugee resettlement program by September 2020. In 2016, then-Governor Chris Christie removed the state from its role in resettlement, and since then, the International Rescue Committee has administered resettlement in the state. Murphy also signed an executive order to create an Office of New Americans that will work to advance immigrant and refugee integration initiatives in the state.

Vermont Supreme Court Rules that State Courts Have a Role in Special Immigrant Juvenile Cases. The Vermont Supreme Court on June 28 ruled that state courts have the authority to make the necessary findings that allow a migrant who is under age 21 to pursue an application for Special Immigrant Juvenile Status (SIJS) with U.S. Citizenship and Immigration Services (USCIS). It reversed a lower court decision that found state courts do not have that authority. SIJS provides a pathway to permanent residence for immigrants under age 21 who have been abused, abandoned, or neglected by one or both parents. In order for immigrants to proceed with their SIJS applications with USCIS, a state court must find that they are dependent on a juvenile court or that a court has placed them in someone’s custody; that reunification with one or both parents is not viable due to abuse, abandonment, or neglect; and it would not be in the child’s best interest to be returned to his or her country of origin. The Supreme Court found that state courts in Vermont have the authority to make these findings, and generally should make them when it is in the best interest of the child.

New York County Clerk Sues Over Driver’s License Law. The Erie County Clerk filed a federal lawsuit in the Western District of New York, arguing that the state’s new law (known as the Green Light Law) making unauthorized immigrants eligible for driver’s licenses is in conflict with the federal statute prohibiting harboring or shielding unauthorized immigrants from detection. Clerks from several upstate New York counties have announced they will not issue driver’s licenses to unauthorized immigrants under the state law, which goes into effect in December.

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