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Immigration Amnesty Is Trump’s Only Remaining Hope

President Trump is furious over the failure of his administration to bring unauthorized migration to an end. At a recent cabinet meeting, he reportedly shouted at Kirstjen Nielsen, the homeland security secretary, blaming her for the fact that after a lull in unlawful border-crossings during the first year of his presidency, when many potential migrants were deterred by his fierce rhetoric, the number of attempts is climbing once again. Predictably, there has been an effort to allay the president’s concerns, to convince him that senior officials really do have every intention of cracking down on unauthorized immigration, even if—or rather, especially if—doing so generates ugly headlines, which will ultimately make their way to source countries and, in theory, deter others from making the trek northward.

Most controversially, the Trump administration has pledged to separate parents who attempt illegal entries from their children. The new policy is designed to channel migrants towards official ports of entry, but also to help ensure that adults accompanied by children aren’t treated more leniently than those who are not. Regardless of what you may think of the justness of such a punitive approach, there is reason to believe it will have some deterrent effect. Potential migrants are more sophisticated than is commonly understood. They are attuned to policy shifts in destination countries, for the obvious reason that the decision to risk apprehension carries with it high stakes. It is not undertaken lightly.

Yet there is a limit to an approach expressly designed to generate ugly headlines, which is that sowing fear doesn’t just deter potential migrants. It also enrages many citizens at home, and it risks sapping the legitimacy of immigration enforcement writ large. This is doubly true of the president’s poorly-targeted approach to deportations. And it is this corrosive effect, not the supposed lassitude of his lieutenants, that truly threatens Trump’s restrictionist agenda. Taken on its own, Trump’s stated goal of modernizing America’s immigration system by making it more selective and skills-based is quite popular. The reason the president has failed to translate this hidden consensus into concrete legislation is that, simply put, his stance on enforcement is perceived as capricious and cruel. Whereas previous administrations have shrewdly sought to deprive opponents of sympathetic plaintiffs, the president’s willingness to target long-resident unauthorized migrants has been generating them by the thousands. Rather than strengthen his restrictionist allies, the president’s heedless approach has proven invigorating for his most determined foes. If he is to have any hope of regaining the initiative, Trump must bite the bullet and accept that a large-scale amnesty is the only way to make immigration restriction a reality.

Consider the fact that around the country, a number of jurisdictions, many of them in the country’s biggest immigration gateways, have responded to the Trump-era surge in federal immigration arrests by pledging to resist Immigration and Customs Enforcement. We see intensifying opposition to ICE not just in California, which now declares itself a “sanctuary state,” but also in sprawling metropolises in the heart of more conservative states, where local prosecutors and sheriffs are successfully campaigning on their willingness to defy it. As Dara Lind of Vox suggests, the net effect of this political and cultural shift could be that immigration-enforcement efforts will grow markedly less effective, to the point where Trump will look upon President Obama’s enforcement record with envy.

To admissionists, the rise of sanctuary progressivism might seem like cause for optimism. It holds out the hope that the next president will preside over a sweeping amnesty, and perhaps even a complete dismantling of ICE and its enforcement apparatus. Yet it is far more likely that America’s immigration stalemate will continue. If Trump’s hardline rhetoric has provoked a backlash from the left, a more permissive successor would undoubtedly spark an equally forceful response from the right. Centrists who recoil from anti-immigrant cruelty will, under lax enforcement, balk at policies that seem to reward mass law-breaking. Sanctuary progressivism is no more capable of commanding durable majority support than punitive restrictionism. If these are the only two choices, we will be doomed to oscillating violently between them. The only way out is a grand bargain on immigration, albeit one very different from the grand bargain touted as recently as the Obama years.

Throughout the Bush and Obama administrations, the outlines of a grand bargain seemed relatively clear. The left would get its amnesty, to help shield millions of foreign-born workers from exploitation at the hands of unscrupulous employers, though it would be euphemistically rebranded as a path to earned legalization, in deference to those with bitter memories of periodic amnesties that had come before. Meanwhile, the libertarian right, closely aligned with many of the very same unscrupulous employers frowned on by the left, would get a vast expansion of guest-worker visas and stringent limits on safety benefits of legalized migrants. As for restrictionists, they’d get the promise that once the new immigration system was up and running, illegal entries would be greatly reduced, thanks in large part to a strengthening of workplace enforcement. Because the vast majority of unauthorized migrants come to the U.S. in search of more remunerative employment, effective workplace enforcement has long been seen as the sine qua non of immigration control.

Yet without exception, restrictionists opposed this grand bargain, which in its Gang of Eight iteration would have greatly increased legal immigration levels. To them, the grand bargain was no bargain at all; rather, it was an attempt to marginalize their concerns that a sweeping amnesty would stimulate further unauthorized migration and that a superabundance of low-skill labor would exacerbate many of the country’s existing economic and social challenges. Partisans of the Obama-era grand bargain tended to see restrictionist opposition solely as a manifestation of ethnic chauvinism. This is despite the fact that, as the political scientists Morris Levy and Matthew Wright have observed, a substantial portion of the opposition to an amnesty is driven by a commitment to the rule of law. While amnesty advocates tend to see the issue in attribute-based terms—they want to grant unauthorized migrants legal status on the basis of their individual characteristics, such as their work ethic and their overall ability to make a positive contribution to the country—amnesty opponents are more inclined to make categorical judgments, in which individual merits aren’t really the issue: You could be a deeply admirable person, but you still broke the law, and you shouldn’t be rewarded for having done so. Levy and Wright find that as many as one-third of Americans reject the idea of an amnesty for unauthorized migrants on these grounds, without regard for ethnicity or class.

In short, the problem with the Obama-era grand bargain is that it got the correlation of forces wrong. Though libertarian conservatives are well-represented among elite Republicans, most of whom were, until recently, favorably disposed toward high immigration levels, their views were very much at odds with rank-and-file conservatives, and with older populist voters who had begun shifting their allegiances from an increasingly socially liberal Democratic Party to the GOP. Donald Trump recognized this cleavage within the Republican Party, and he leveraged it to secure its 2016 presidential nomination. So it is hardly surprising that he has endeavored to live up to his promises to the party’s restrictionist base by, among other things, committing ICE to arresting and deporting long-resident unauthorized migrants. Why should he change course now?

The reason is simple: While it is indeed true that a vocal minority of Americans opposes an amnesty, a large majority has come to accept it as desirable, inevitable, or both. As a result, enforcement efforts against unauthorized migrants who’ve lived in the U.S. for a decade or more, who represent 66 percent of the unauthorized population, are seen as an affront. While such sentiments are near-universal among Democrats, they are also quite common among Republicans. In November 2016, shortly after the presidential election, the Pew Research Center found that 60 percent of Trump supporters favored an amnesty for unauthorized immigrants “who meet certain requirements.” As of last year, two-thirds of Trump supporters backed a DACA amnesty. When the president floated the idea of a more expansive amnesty in January, his remarks met with consternation from restrictionist activists, but failed to prompt a broader revolt among his supporters, either because the idea didn’t go anywhere or, perhaps, because he only offered it in exchange for larger concessions on future immigration flows.

This is essential to understanding why Democratic lawmakers have been so unwilling to make significant concessions in exchange for a DACA amnesty. If congressional Democrats agreed to, say, mandatory E-Verify, one of the more effective tools of workplace enforcement, as a condition of granting the Dreamers legal status, they would greatly limit the employment opportunities of millions of other unauthorized immigrants who have lived in the country for over a decade. Many GOP lawmakers have been similarly wary, and not just members of the party’s libertarian rump. One could argue that this reluctance to make significant concessions on behalf of the Dreamers speaks to the cynicism of separating the good, innocent unauthorized migrants who entered the country as minors from their culpable loved ones, who entered as adults. Nevertheless, the fact remains that most Americans don’t have the stomach to uproot the long-resident unauthorized population, and pretending otherwise makes immigration enforcement less tractable, not more so.

If the president really wants to sharply reduce unauthorized immigration, it is essential that he shore up the legitimacy of immigration enforcement, and cleave immigration centrists from the ranks of the sanctuary progressives. Realistically, the only way to do this is for Trump to offer a new grand bargain of his own: Building on the Secure and Succeed Act, he would call for limits on chain migration and serious workplace enforcement, two of the restrictionist movement’s core objectives, and in exchange he would accept an amnesty for unauthorized migrants who have peacefully resided in the U.S. for a lengthy period of time. To establish his credibility on this front, he could shift enforcement resources from long-stayers to more recent arrivals, with a particular focus on visa overstayers. Doing so would send a clear signal to potential migrants, which in turn would soon yield a steep decline in the unauthorized inflow.

Adopting this strategy would certainly not silence the president’s critics on the left, and it would provoke the ire of at least some rule-of-law restrictionists. Yet Trump’s vaunted connection to his base would, I suspect, be strengthened by such a move. His devotees see him as a man capable of achieving the most unlikely diplomatic breakthroughs. If he breaks America’s immigration stalemate, he can prove them right.

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