Politics & Policy


Pro-DACA demonstrators near the White House, September 5, 2017. (Photo: Eric Baradat/AFP/Getty)
What Republicans should bargain for

Editor’s note: This piece appears in the October 2, 2017, print issue of National Review. We are posting it online immediately because the story is rapidly developing.

President Trump has announced the end of Deferred Action for Childhood Arrivals (DACA), a program his predecessor initiated by executive order in 2012. About 800,000 “Dreamers” — people brought to the U.S. illegally before they were 16 years old — have work permits through the program that, until now, were renewable in two-year increments. The government will still honor the existing permits, and permits expiring before March 5 can be renewed one last time. But thereafter, permits will start expiring unless Congress passes a law saying otherwise.

The Dreamers will not be summarily rounded up and deported if Trump follows through on terminating the program. (There is considerable doubt he will: Almost immediately after the announcement, the supposed dealmaker undermined his own negotiating position, tweeting that he’d “revisit this issue” if the legislature didn’t act.) But they will find it hard to live normal lives, as they will be legally subject to deportation in the event they come to the authorities’ attention.

It’s an urgent situation, and one in which immigration restrictionists have some leverage. Congress has repeatedly considered giving Dreamers legal status, in the proposed DREAM (Development, Relief, and Education for Alien Minors) Act that is the source of their moniker — and, notwithstanding polls showing DACA to be popular, has repeatedly refused, owing in part to the reelection fears of purple-state Democrats. It did this even in the second year of Barack Obama’s presidency, when the Democrats passed the DREAM Act in the House (with help from eight Republicans), had 58 members in their Senate caucus, and won the votes of three Republican senators, and yet still could pull together only 55 of the 60 votes needed to overcome a filibuster in the higher chamber.

Some immigration hardliners object to giving Dreamers legal status at all, but more common is the concern that doing so could create a magnet for future illegal immigration. Thus legalization must be paired with effective enforcement going forward if it is to command the support it needs for passage.

The first question now is the precise mix of immigration reforms Republicans can plausibly demand in exchange for legalizing the Dreamers. The second is whether this is a good time for restrictionists to pursue a broader overhaul of our immigration system.

Both Trump and House speaker Paul Ryan have said they would like to trade DACA for “border security.” But this is the wrong focus, because approximately two-thirds of illegal immigrants today enter the U.S. legally but overstay their visas. This can be addressed only by enforcement in the country’s interior.

The most urgent priority in this regard is E-Verify, a program that employers may voluntarily use to confirm that their workers are in the country legally. Making the system mandatory should be non-negotiable; it is the best way to turn off the jobs magnet for illegal immigrants regardless of how they got here. Only once this is agreed to should legislators hash out the details of wall funding or other enforcement measures, such as hiring more Border Patrol officers and immigration judges or implementing a system to track those here on temporary visas.

There’s another issue that must be addressed in a DACA deal as well: If these individuals are given full citizenship instead of some other form of legal status, they will be able to sponsor their parents — i.e., the people who broke the law to get them here — for permanent residency. This is obviously not acceptable. Either the Dreamers shouldn’t become full citizens, or their parents should be banned from applying for green cards.

Some restrictionists would like to go much farther than this, mainly by making changes to the legal-immigration system. The most aggressive want to put a dent in the 1 million total green cards handed out annually, perhaps cutting that number by as much as half. But the above three measures — E-Verify, border security, and ensuring that Dreamers’ parents don’t benefit from any deal — likely push the limits of what the Left is willing to pay for legal status for Dreamers.

What’s at issue here is not summary deportation, but basically a return to the status quo ante of 2012.

Remember, what’s at issue here is not summary deportation, but basically a return to the status quo ante of 2012. Immigration maximalists are not going to want to significantly reduce the number of people we bring in every year going forward just to legalize a relatively small group of people who are already here. Further, restrictionists lose the moral high ground as their demands shift toward policies that have no substantive connection to legalizing the Dreamers.

As for a broader immigration reform, no one would call this the perfect opportunity. Republicans, with just 52 votes, are far short of a filibuster-proof majority in the Senate, and many members of their own caucus famously supported previous “comprehensive” bills that would have increased legal-immigration levels, granted amnesty to the current illegal population, and failed to adequately control illegal immigration going forward.

Those comprehensive bills failed spectacularly when the public’s opposition to these policies became clear. One would hope this had chastened wayward Republicans. Further, the backlash demonstrates how far to the left of the general public Congress tends to be on this issue. Today that gap is the smallest it will be for a long time, simply because it’s so rare for the GOP, the more restrictionist of the two parties, to control the House, Senate, and presidency simultaneously. (The last time was more than a decade ago, and George W. Bush supported “comprehensive” reform.) So there’s now an opportunity to use popular opinion against politicians who otherwise might not vote for even basic immigration restrictions.

Even if an ambitious effort fails, the GOP can still make a limited DACA deal and hold out hope for the 2018 elections. The GOP has an advantage in the Senate this cycle, because Democrats will be defending 25 seats (including those of two independents who caucus with the Democrats) while Republicans defend just eight. Should Republicans hold the House and gain seats in the upper chamber — perhaps on the strength of championing a sensible approach to immigration — they could bring back measures that narrowly fall short.

The goal should be to advance the following package of reforms, which has clear popular support: a combination of the DACA deal outlined above and several bigger, equally commonsensical measures. This means restrictionists won’t get everything they want, but public support will keep squishy Republicans in line and put pressure on vulnerable Senate Democrats.

Public opinion on immigration is hard to nail down; frustratingly, different ways of asking a question can yield dramatically different results, and many pollsters have obvious agendas in the way they phrase their queries. Should illegal immigrants be deported, given legal residence, or offered a path to citizenship? A majority will go with the final option, and a huge majority will steer clear of the first. Should illegal immigrants be given legal status or encouraged to go home? A majority will pick the latter.

But there’s a way to thread this needle. It starts with the DACA deal: The most sympathetic illegal immigrants are immediately given legal status while E-Verify encourages others to leave by making it harder to find employment, and stepped-up border security and other enforcement measures stop the illegal population from growing further. Once this system has had some time to work, and only then, do we move on to a broader amnesty. The bill this year should spell out the timing and conditions of that amnesty, a concession to the Left that will create leverage for further reforms.

That’s where our legal-immigration system comes into play. Senators Tom Cotton (R., Ark.) and David Perdue (R., Ga.) have already laid the legislative groundwork for reform in their Reforming American Immigration for Strong Employment (RAISE) Act, about which Reihan Salam has written in these pages (“The Case for Skills-Based Immigration,” August 28). The bill can be boiled down to three main changes: It would restrict family-based immigration to spouses and minor children (current policy allows sponsorship of adult children, siblings, etc.), it would grant employment-based green cards through a new skills-based point system, and it would reduce the total amount of legal immigration by about half over time.

The last part is the problem. I personally think it’s unwise as policy; high-skill immigrants are much less of a problem than low-skill immigrants are. They don’t compete with our most vulnerable workers for jobs, they pay far more in taxes than they consume in services, they rarely commit crimes, and almost all of them speak English. So if we limit immigration to the highly skilled, it becomes less pressing to cut total immigration.

But more to the (political) point, reducing immigration isn’t popular, with just 35 percent supporting it in the most recent Gallup survey. Since the 1960s, the organization has repeatedly asked Americans whether they’d prefer higher, lower, or current immigration levels, and, while the numbers bounce around, two surveys in a row haven’t found majority support for cutting immigration since 1995 (or 2002 if you remove those with “no opinion”). Support for increasing immigration has been even lower, rarely having poked its head above the 25 percent mark. Leaving the overall level the same has usually won a plurality in the current decade.

Only 13 percent of immigrants are admitted for employment reasons, and only about half of those are selected for having particularly high skills.

Without the cut in total immigration, the message of the RAISE Act would be this: Today, only 13 percent of immigrants are admitted for employment reasons, and only about half of those are selected for having particularly high skills; most immigrants come because of family relations. We also have a “diversity lottery” that hands out 50,000 green cards each year literally at random. Instead, why don’t we give green cards to the people with the best education and the highest-paying job offers, and let them bring only their spouses and minor children?

If the concern is that we need some low-skill immigrants too, even as less-educated Americans are struggling to find jobs and automation is threatening low-skill work, fine. Let’s have a forthright public debate about the number.

Meanwhile, the RAISE Act does not touch temporary “nonimmigrant” visas such as H-1Bs, but those need similar reforms. While H-1Bs are restricted to certain technical fields, they are handed out by lottery — and outsourcing firms such as Infosys and Tata Consultancy Services flood the application pool, winning up to half the visas. As a result, the program largely helps companies replace their American-citizen, middle-class tech workers with cheaper foreigners procured through these firms. The visas instead should go to the most skilled, highest-paid applicants. This could be accomplished by having companies bid for the visas in an auction or through a RAISE-style point system. Even many liberals have long been clamoring for H-1B reform; the lefty Economic Policy Institute, for instance, has criticized the program relentlessly over the years.

Republicans should bundle all of this together, slap it down on the negotiating table, and ask Democrats to publicly explain their objection to legalizing the Dreamers, clamping down on illegal immigration going forward, offering legal status to the broader illegal population once enforcement measures are in place, and reorienting legal immigration around skills.


The Unfairness of DACA

The GOP Risks Being Outmaneuvered on the DREAM Act

Open Borders Lobby in Denial about DACA and Due Process

— Robert VerBruggen is a deputy managing editor of National Review.

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