For the past four years, debate about immigration policies has grown both more heated and more beside the point. President Trump was committed to immiserating as many immigrants as possible, and any cost-benefit analysis was irrelevant.
It is easy enough to imagine a less sadistic system. But reimagining enforcement altogether – its ends and means – is a more complicated undertaking.
That’s the purpose of a new paper by Peter Markowitz, a professor at Benjamin N. Cardozo School of Law, published last week by the Center for American Progress. “The nation needs a new paradigm for the ways it enforces immigration laws – a paradigm that is more humane, significantly less expensive, and simultaneously more effective at increasing compliance with immigration law,” Markowitz writes.
Markowitz focuses on interior enforcement rather than border enforcement. And he wants more than a return to the reign of prosecutorial discretion under President Barack Obama, when the deportation of criminals was prioritized over the destruction of peaceful families. His view is that immigration enforcement should look more like the regulatory regimes of the Environmental Protection Agency or the Securities and Exchange Commission, bureaucracies that rarely seek a “death penalty” against enforcement targets.
In lieu of the “death penalty” – deportation – Markowitz proposes diverting those with the potential for legal status to a pathway to lawful permanent residence. Those facing threat of deportation should have access to a lawyer, which dramatically increases the likelihood of being able to stay in the U.S. legally. Judges should be permitted to apply “scalable penalties” for immigration offenses, including fines instead of incarceration or deportation. He also proposes a statute of limitations on immigration offenses, enabling longtime undocumented residents to enter the mainstream of American life.
Such leniency would permit more undocumented immigrants to remain in the U.S. and no doubt produce a powerful political reaction, with ample opportunity for demagogy. But aggressive, large-scale enforcement is a recent development, dating from the latter half of the 20th century. “For most of this country’s history,” Markowitz writes, “enforcement proceedings and even the deportation process itself were initiated with notices, not arrests, and the nation can return to that norm without undermining the integrity of the system.”
Of course, for most of this country’s history, notions of citizenship and belonging were both vague and significantly dependent on race. Historian Jill Lepore quotes Edward Bates, Abraham Lincoln’s attorney general, scouring law books and court records 75 years after the Constitution was drafted in a “fruitless search” for a working definition of a U.S. citizen.
Trump’s obsession with racial demographics won’t slow the transformation of the nation. Meanwhile, his brutality has fueled sympathy for immigrants and a decisive pro-immigrant swing in public opinion. Some border optimists envision a more rational flow of legal labor – not unlike the legal flow of goods – across the border with Mexico and, eventually, improved conditions in the Central American nations where desperation has been fueling migration.
If the racial panic on the American right eases, and the conditions driving migration improve, it’s not hard to imagine a softened immigration enforcement regime that costs far less money and produces significantly less misery. For now, the panic has not abated, and Central America is still in crisis. Even with a kinder, gentler regime, the terms of national belonging would be subject to contest. As historian John Higham noted in 1975: “Fundamentally, the issues of ethnic life are never settled.”
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