Why the Kids Act Hasn’t Taken Off

by Reihan Salam

Peter Skerry explains why the “Kids Act,” a new measure backed by House Majority Leader Eric Cantor and House Judiciary Committee chairman Bob Goodlatte, has met with strong Democratic resistance. Supporters of comprehensive immigration reform have benefited from the political popularity of the DREAM Act, a measure that sought to regularize the status of unauthorized immigrants who arrived in the U.S. as minor children, provided they met certain requirements. So congressional Republicans, having recognized that opposition to the DREAM Act (which, for the record, I opposed) was proving politically toxic, have been rallying around standalone-legislation (the Kids Act), that would actually go further than the DREAM Act as part of an effort to neutralize their opposition to other aspects of the Senate immigration bill, which many conservatives (myself included) see as deeply flawed. A year or two ago, something like the Kids Act would have looked like a huge victory for advocates of immigration liberalization. Now it is being dismissed as too little, too late. Skerry offers two theories as to what’s going on.

First, immigration advocates generally lack legitimacy as defenders of the interests of unauthorized immigrants:

For example, it is difficult for the advocacy groups that have been supporting the push for “comprehensive immigration reform” to compromise and agree on a fallback position. This dynamic has been insightfully and honestly explored by Georgetown law professor Philip G. Schrag in his neglected insider’s account of advocacy on behalf of immigrants and refugees during the 1990s. As Schrag explains in A Well-Founded Fear: The Congressional Battle to Save Political Asylum in America, immigrant advocates invariably come together in coalitions whose dominant ethos is, not surprisingly, “consensus politics and transparent decision-making.” Yet these principles are extremely difficult for large, cumbersome coalitions to sustain. Particularly in a policy area as complicated as immigration, intense negotiations typically boil down to a few key players making tough decisions in private.

There’s more. Schrag also highlights that compromise is difficult for immigrant advocates because they feel a “sense of stewardship for the interests or constituents they represent, most of whom did not choose their representatives, even in the fictitious sense that stockholders choose their boards of directors.” Immigrant advocates are consequently left “wondering if they have sold out the interests they claimed to represent.” Schrag goes even further and observes that such “advocates perpetually doubt their right to take less than an absolutist position, even when it is clear that advocating an absolutist position will result in worse legislation than seeking a compromise.” [Emphasis added]

This leads to a second complication, which is that while unauthorized immigrants might be inclined to take a less-that-maximalist position — regularized status would be a huge boon, even if citizenship is not attached — the elected representatives of immigrant-heavy constituencies have weak incentives to take a less-than-maximalist position, because unauthorized immigrants are in no position to punish them at the ballot box:

A good example is California’s 34th District, represented by congressman Xavier Becerra, quoted above. After the recent redistricting, the 34th is over 65 percent Hispanic, and includes Los Angeles suburbs like Huntington Park and Bell Gardens that are classic ports of entry for illegal immigrants. So while in November 2012 voter turnout in congressional districts across California averaged about 250,000, in the 34th it was only 140,590. And for a variety of reasons, this was an unusually high turnout. In previous years, Becerra’s vote totals were substantially lower. Thus, the American version of “rotten boroughs” is directly attributable to aggregated numbers of illegal immigrants.

It is possible that when Rep. Becerra and other similarly situated members reject Republican proposals such as the Kids Act, they are basing their response on what they hear from the illegals in their districts. But consider: These elected officials are hardly accountable to such politically passive individuals. Indeed, it is worth asking how, exactly, such officials determine what is in the best interests of such “constituents”? Perhaps, like the advocates described by Schrag, these officials are rejecting a compromise that the illegals themselves would accept. [Emphasis added]

If a “citizenship-or-bust” position conveys toughness and ideological rectitude, it might ward off left-wing primary challengers, even though it might also work to the disadvantage of unauthorized immigrants, many of whom would much prefer half-a-loaf to none.