The Democratic Strategy for Comprehensive Immigration Reform: What Went Wrong
The failure of the Democrats to pass the DREAM Act in December prompted the Washington Post and Representative Luis Gutierrez (D-IL) to declare President Obama's immigration reform strategy a failure. Ali Noorani of the National Immigration Forum explained the "pickle of epic proportions" that the administration was in:
Republicans would now cry foul if the administration eased up on deportations, he said. But Latinos are losing patience with a strategy that has led to pain without gain for their communities.
Nevertheless, according to the Post, the Obama administration is doubling down on its "enforcement-first" strategy, having "no plans to pull back on enforcement just because Republicans are unlikely to support a bipartisan overhaul of immigration laws in the next two years."
How did the Democrats' immigration reform strategy fail so thoroughly? What went wrong? And why is President Obama still committed to a failed strategy?
Candidate Obama Promises to Push for Immigration Reform
On the campaign trail, Candidate Obama distinguished himself enough from his opponents that I picked him in the 2008 Democratic primary as the "Pro-migrant Choice." But on immigration policy, President Obama bears little resemblance to Candidate Obama.
President Obama has kept his campaign promises to secure the borders and crack down on employers who hire undocumented immigrants. He has not been as diligent in keeping his promises to pro-migrant voters. On May 28, 2008, Obama said to Jorge Ramos:
I cannot guarantee that it is going to be in the first 100 days. But what I can guarantee is that we will have in the first year an immigration bill that I strongly support and that I'm promoting. And I want to move that forward as quickly as possible.
He broke this promise.
President Obama also verbally supported the DREAM Act but did nothing to move it forward. In the end, it took Harry Reid's reliance on Latin@ voters in a tight Senate race to bring the DREAM Act out of committee and onto the voting floor.
President Obama Breaks Deportation Records
The overriding policy priority under the Obama administration has been an increase in deportations from Bush-era levels to new highs. Obama's DHS deported 392,862 people in Fiscal Year 2010, up from 389,834 in 2009 and 358,886 in 2008 (pdf) under the Bush administration. President Obama has deported more people per year than any other president in U.S. history.
Another hallmark of this administration has been a shift from the visible, large scale workplace raids favored by President Bush to employer audits conducted under the radar. The outcome in both types of enforcement action is that breadwinners in immigrant families lose their jobs. Meanwhile, home raids continue unabated.
Early morning raids of residential homes are sometimes conducted in the guise of criminal investigations but are actually intended to sweep up as many undocumented immigrants as possible. Violations of the Fourth Amendment protection against unlawful search and seizure are rampant (pdf). I have represented clients targeted in this way.
The Obama administration has also expanded federal programs known as Secure Communities and 287g which enhance collaboration between local law enforcement and federal immigration enforcement. While the stated purpose of these programs is to target violent criminals, in reality, they are just another tool this administration has used to target undocumented immigrants by any means available. A study released last year showed that "79 percent of those deported under Secure Communities have no criminal records 'or had been picked up for low-level offenses, like traffic violations and juvenile mischief.'"
These programs facilitate and encourage racial profiling by local police, who know that a pretextual arrest will often lead to deportation and never be reviewed by any criminal court. Rather than making communities safer, the programs decrease overall public safety by discouraging victims and witnesses from reporting crimes.
In addition to home raids and aggressive litigation positions in immigration court, ICE has come to rely on racial profiling by local police to meet deportation numbers. Whether through formal quotas or informal pressure, the policy priority to deport more people is clear from the actual results.
Immigrant rights advocates believe this "enforcement-first" approach was selected in part to persuade Republican Senators to support a comprehensive immigration reform bill. I believe DHS has been promoting these numbers to deflect criticism of the administration from conservatives and "moderates" over immigration policy.
Three serious problems with the "enforcement-first" approach make it more likely to harm immigrant communities than to help them. First, Democrats crafted their immigration reform plan around a nativist narrative designed to frustrate efforts to grant legal status to undocumented immigrants. Second, by attempting to be both Deporter in Chief and Champion of Immigrants, President Obama has set a politically impossible task for himself, one that has so far only led to increased enforcement with no benefit to immigrant communities. Third, by characterizing their approach as the lesser of two evils, Democrats hope to retain Latin@ support without assuming the risks involved with pushing immigration legislation forward.
The Policy Trap
Obama and Democratic leadership in Congress have bought into the nativist narrative about immigration policy. The "rule of law/criminalization" narrative successfully promoted by nativists has two main components:
- Criminalize immigrants in both public discussion and legislation. Characterize all undocumented immigrants as lawbreakers, and expand the category of deportable offenses for documented immigrants. Praise legal immigration, while limiting its scope. Tie undocumented immigration to fears of terrorism.
- Argue that policymakers must secure the border before implementing any legalization.
The Democratic plan for comprehensive immigration reform closely mirrors the nativist narrative:
- Secure the border before any legalization moves forward
- Then, immigrants must pay a fine,
- Admit they broke the law,
- Go to the back of the line,
- And only then be eligible for conditional legal status
This failed strategy is derived from a flawed process. Instead of pursuing a values-based strategy driven by affected immigrant communities, Democrats pursued a poll-tested, consultant-driven strategy rooted in public misconceptions about immigrants. This approach is ineffective because it is unprincipled, a shortcut intended to profit consultants like James Carville and Stanley Greenberg rather than to benefit immigrant communities.
And this shortcut failed because the nativist narrative is designed to make any future legalization impossible. By adopting each core assumption of the nativist narrative, Democrats assured that their effort to pass comprehensive immigration reform would fail.
This nativist policy trap has two main aspects. First, voters will never reward criminals with legalization. Second, border security can never be attained as long as undocumented immigrants remain in the U.S.
Integral to the Democratic plan for legalization is the idea that immigrants must be punished as lawbreakers. Applicants for legalization would be required to admit wrongdoing, pay a fine, and go to the back of the line. Obama's entire strategy for preparing Congress for legalization has been to increase deportations and target so-called "criminal aliens." Since early 2008, the Democrats have promoted this plan borrowing the rhetoric of criminality mainstreamed by anti-immigrant groups.
By definition, anyone who would benefit from legalization in this scenario is a lawbreaker. But rewarding lawbreakers is a political nonstarter in the U.S. Voters believe that lawbreakers deserve punishment, not reward for breaking the law. Anti-immigrant pundits have said loudly and often that rewarding immigrants now after the 1986 Reagan amnesty will only create incentives for immigrants to break the law in the future. By adopting the "immigrants as criminals" narrative, Democrats hamstrung their effort at its inception. As Colorlines reporter Seth Freed Wessler paraphrased Catherine Tactaquin, director of the National Network for Immigrant and Refugee Rights, "the rhetoric was so heavily focused on enforcement that it cast immigration as a problem, rather than a constitutive element of the American identity."
Democrats also stumbled by conceding to nativists that "securing the border" must be a prerequisite to any legalization. Democrats are now starting to realize that allowing nativists to set the parameters of border security means that it will never be achieved no matter how punitive enforcement policies become.
The U.S. has militarized one of the longest land borders in the world, building a border wall, hiring thousands of new border patrol officers since 9/11, sending troops to support the border patrol, and shooting unarmed border crossers. Meanwhile, low-income immigrants from Mexico and Central America have no way to legally enter the U.S. while the economic viability and physical safety of their communities come under increased pressure from transnational criminal syndicates profiting from the U.S.'s misguided War on Drugs. While the recession has temporarily reduced undocumented migration, long-term economic and security incentives that encourage migration have not changed.
In addition, immigrants who have spent many years in the U.S. face permanent exile from their families upon deportation. There is nothing that will stop a person from crossing the border if that is the only way he can be with his family again.
The border has also expanded. Border enforcement long ago moved from the border to every corner of the U.S., a practice called "internal enforcement." ICE is active in all 50 states, conducting home and workplace raids far from the border.
As long as there are undocumented immigrants in the U.S. and some immigrants cross the border into the U.S., nativists will argue that the border is not secure. If the border is not secure, there can be no legalization. Therefore undocumented immigrants will continue to live in the U.S. and the border is not secure. Therefore there can be no legalization.
This argument is completely circular and has so far been very effective.
By buying into the fundamental assumptions of the nativist narrative, Obama and the Democrats have created an impossible task for themselves. They will never be able to implement a legalization plan designed to fail. This is the policy trap.
The Political Trap
President Obama is not only pursuing a failed policy strategy, he has fallen into a political trap as well.
Obama has solicited support from Latin@ voters by adopting a public posture in support of immigrants against GOP attackers. He has called for earned legalization, expressed public support for the DREAM Act, and publicly opposed SB1070.
At the same time, he has promoted punitive enforcement policies by expanding Secure Communities and 287g, increasing deportations each year, requesting more and more money for immigration enforcement even in a recession, and continuing to deport Dreamers. Enacting tough enforcement policies is the first stage of the Democratic comprehensive reform strategy.
But these two policy priorities are fundamentally irreconcilable, and lead to an untenable political position for Obama and the Democrats. Obama cannot be both Deporter in Chief and Champion of the Immigrants.
The GOP faces no such dilemma, at least in the near term. And politicians are most concerned about their next campaign, not the election three cycles in the future which they'll never reach if they lose the next one. Republicans have, especially on the local and state level, given up for now on pursuing the Latin@ vote. They are politically rewarded by white conservative voters for embracing the "enforcement only" policy position. According to Wayne Cornelius, "Republicans in Congress have found tough immigration stances to be reliably effective in mobilizing their base."
Each time Obama promotes his enforcement credentials, Republicans can convincingly point to his efforts to win the support of Latin@ voters to undermine the president's image as an immigration enforcer. This has a ratcheting effect, pushing Obama to increase enforcement and highlighting the precariousness of this political balancing act. This is the political trap.
Democrats Hope the Status Quo Will Work for Them
But Barack Obama and Rahm Emanuel are not stupid people. Democrats continue to pursue the failed comprehensive immigration reform strategy in part because the status quo works for them. They enact bipartisan enforcement legislation and currently run the federal deportation machine, but get to claim publicly that they are the party of immigrants only because the GOP is so much worse. Political damage with "moderates" is consequently mitigated while the GOP alienates Latin@ voters with more extreme anti-immigrant positions.
Democrats have so far suffered minimal political consequences for their failure to secure legalization and their continued support for "enforcement-only" immigration policy. Democrats can always point to the GOP and say "they are worse than we are." As long as Latin@s and progressives accept this false choice, Obama and the Democrats will have little incentive to change their political strategy.
And the proof is in the pudding. Rather than pushing in earnest for immigration reform, Democrats hid behind a series of feints and false timelines, never introducing in either house of Congress the consensus comprehensive reform bill they had promised. This was a transparent effort by Democratic leadership to deceive Latin@ voters. Sadly, Latino leaders like Representative Luis Gutierrez and Senator Robert Menendez facilitated this deception by allowing Democratic leadership to promote the "marker" bills they introduced as the consensus bills that were never introduced. Journalists like Univision's Jorge Ramos and bloggers started to call Democrats out on this hypocrisy in 2010.
Seth Freed Wessler worried that "[e]ven if the strategy eventually works, the 'comprehensive' schema Obama supports will undermine itself with its massive and indiscriminate deportation dragnet." Those who suffer under the status quo are immigrant families, not politicians or consultants. Obama and the Democrats will have no serious interest in changing the status quo until they are held accountable by pro-migrant voters for perpetuating the current situation for their own political gain. President Obama will not change course unless he feels it is necessary for his political future.