U.S. Immigration Reform Denied: Destined to Repeat the Cycle of Failure?

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CHAPTERS 

[00:03:15] The Immigration System: Architecture and Dysfunction

[00:05:26] Shift in Public Debate: Ideas to Identity

[00:07:07] Party Divergence on Immigration

[00:11:00] Congressional Procedures and Legislative Gridlock

[00:13:25] Disruptive Events: 9/11, Recession, and Beyond

[00:15:00] Enforcement Spending: A Bipartisan Exception

[00:20:43] Outlook and Guidance for Emerging Policy Analysts

TRANSCRIPT

[00:00:03.11] 

Welcome to the World of Migration, the podcast that the Migration Policy Institute has launched as part of its 20th anniversary celebration. This series showcases some of the top thinkers on migration policy who are central to MPI's creation. We're asking them not only to reflect on how policy has changed over the past two decades, but also to share some of their reflections on their careers and offer thoughts for today's emerging migration experts. My name is Jessica Bolter. I'm a policy analyst at MPI working on the U.S. Immigration Policy Program with my colleague Muzaffar Chishti, who I'm delighted to be speaking with today.

[00:00:45.08] 

Oh, Jessica, such a delight to speak with you and to be speaking on something other than burning midnight oil on Policy Beat and

[00:00:54.10] 

some of the things we work on.

[00:00:56.03] 

Definitely so. Muz is an MPI Senior Fellow. He directs MPI's office in New York, which is based at NYU School of Law. He's been a key part of the organization almost since its inception. His work focuses on U..S Immigration policy at the federal, state, and local levels, the intersection of labor and immigration law, immigration enforcement, civil liberties, and immigrant integration. And I can personally attest to the fact that as an attorney, anytime there are any legal developments on immigration in the courts or legislation, Muz is the first person we turn to at MPI to understand what this means in reality. Having watched the immigration legislative process closely since the late 1970s and early 1980s, Muz is a keen reader of the political tea leaves, so I think he's the perfect person to speak with for our topic today: immigration Reform Denied Destined to Repeat the Cycle of Failure, Thanks again, Muz, and let's start off with the first question. The U.S. immigration system is widely acknowledged on all sides of the debate as being broken. The architecture of the legal immigration system hasn't been updated since 1990. It's not meeting labor market imperatives.

[00:02:23.16] 

People can be in queues that can last for decades before they get a green card keeping them apart from their families. And the fact that there are 11 million unauthorized immigrants in the country is the final proof of a system that's deeply misaligned with reality. Faced with the enormity of the dysfunction here, Congress has proven itself unable throughout the past two decades of enacting legislative reform to overhaul the entire immigration system, aside from a broad bipartisan consensus on spending billions and billions of dollars to increase enforcement both at the U.S.-Mexico border and and in the U.S. interior. So Muz, why is this that we've seen consistent failures on comprehensive immigration reform throughout the past two decades.

[00:03:11.14] 

Thanks, Jessica. And that's a really good point. To start, as you pointed out, we haven't changed our immigration system since 1990. In fact, I would argue that we haven't changed our immigration architecture since 1952. We have occasionally tinkered with it. Some of those tinkerings were very important, 1965, 1986 and 1990. But the fundamental architecture is 1952 architecture. What categories of people do we admit in how many numbers? That has really remained static for a very long time. And that is sort of, in many ways the basis of our present broken immigration system. And you highlighted the symptoms of that very well. And that is not serving the national interest. And on this, everyone can agree, you can go, people from the far left to the Trump supporter, that this is really a broken system and he needs fixing. So the fact that there's so much consensus on that, why has this thing not happened? And I would say that there are at least four broad reasons why it has been so hard to achieve. One is that the nature of debate on immigration in the country has changed very significantly in the last 20, 25 years.

[00:04:35.11] 

The second is that the nature of politics on immigration has hugely changed in the country. The third is that the way Congress functions today is very different than how Congress used to function 20 years ago. And the last is that there are just dumb luck, is that there are incredibly important oversized seismic events that have had a huge impact in the progress on immigration. So I would say each of these contributes to the logjam that we are in.

[00:05:09.05] 

So let's take each of these one by one. First of all, how has the nature of the debate around immigration changed?

[00:05:18.11] 

Exactly. So about 25 years ago, even 19, you know, 30 years ago, 1990, when Congress last looked at this, immigration was seen as a battle of ideas that people argue that should we have more immigrants who are high-skilled or low-skilled, or should we have more farm workers or more nurses, or do our immigrants coming in and hurting U.S. Workers, are they affecting sort of the integration of immigrants in the communities? So it was at least about ideas that you could agree or disagree on, but civilly debate. And on that you saw Republicans and Democrats kind of equally divided on issues. What has happened today? That immigration is no longer seen as fundamentally an issue about competing ideas. It is about culture. It is about people's view of immigration as affecting the look and the feel and the smell of the country. And those are really deeply emotional issues. So it's not the brain that much that's working in the narrative Immigration today, it's the gut working. And that changes the nature of the debate hugely. And that is sort of permeated all across the country. So today the immigration debate is not confined to the small group of immigration insiders or junkies who could huddle in one small room and debate it.

[00:06:45.01] 

It's now affecting localities and states and rural and urban America in a way that's become much more of a cultural issue than it was. And that changes people's responses.

[00:06:58.22] 

And the second point you mentioned was that the politics of immigration have changed. How so?

[00:07:06.18] 

Exactly so. 1986, 1990, even 1965, the last three major revisions of immigration. Democrats and Republicans were equally divided. You could find pro immigration Democrats and pro immigration Republicans. You could find skeptical Democrats and skeptical Republicans on immigration. You had to therefore argue your point. Both within Democratic and Republican parties today, it's become really hyper politics and hyper politicized is the better way of putting it. That immigration obviously is a charged political issue, always has been since the beginning of our country, but now become charged politically with a capital P, that it's now become very difficult in the Republican Party to be pro immigration. So just as to put a point on this, at the end of the 20th century, beginning of the 21st century, actually, Americans were not that celebratory towards immigration. People did majority of Americans did not think immigration was the net plus for the country. Today, about 2/3 of Americans think it's a net plus. But what has happened is that the sort of the disparity in the two parties about how they view immigration as a good has radically changed that. Today the disparity between Republicans and Democrats is about 40, 45% split.

[00:08:40.05] 

So that obviously has a huge effect in the electoral politics. So if you're a Republican to be pro immigrant today, all it does is invite an opposition for you in the primary to be completely sort of bipartisan about this. The good test of this is what's been happening to party platforms beginning in 2008 and much more pronounced in 2016. The party platforms on immigration were just radically different. In fact, I would say that in the 2016 platform, if you look at the Republican Party platform, it could not find a single immigrant or group of immigrants that it liked. That in the past you would say, well, we don't like low-skill immigrants. We certainly like high-skill immigrants. We don't like immigrants in general. We like refugees. We may not like ---, but we like Cubans. This was the first time they couldn't find a single group of immigrants. That they liked. On the other hand, if you look at the Democratic party platform, they couldn't embrace a single enforcement mechanism. So, you know, that sort of the Democratic party has become hugely pro immigrant and the Republican party has become more and more skeptical and even scared about immigration, which is why immigration has sort of become the third world third rail of American politics.

[00:10:06.15] 

The way that parties think about immigration and the way that immigration has become politicized, of course, plays out in these legislative debates around immigration. And you say that the way that Congress functions has changed as well. So how? How has it changed?

[00:10:29.22] 

Yeah, that's really a very unappreciated phenomenon. You know, till 2000, maybe even beginning of the 21st century business like immigration, all other public policy issues were sort of taken up in the regular order that there was a bill introduced, you had a subcommittee hearings, you got experts to weigh in, you know, marked up. They went to the full committee, went to the House floor, debated it openly. Same thing happened in Senate. You reconciled the two bills and there was a compromise. That regular order has failed in Congress. We have much more use of filibuster, much more regularly used than it was used even 24, 25 years ago. And we have this new rule developed in the last 25 years called the Hastert Rule against, named after a former Republican speaker House, which is that you cannot take anything for vote to the floor unless the majority of the majority party agrees with it. Now, that means essentially that there is very little opportunity then for bipartisan work, that if the. The party leaders don't have the votes in their own caucus, it just doesn't even get a hearing. That kind of log jam was just unheard of 25 years ago.

[00:11:47.19] 

And so that has really made it very difficult for any regular legislation to meet the final outcome that it needs for it to happen. And so therefore, you have bills introduced in one house or the other, and they die in one house or the other. They never even get to the stage where you could see how a compromise could be made either on ideas or even on the pathway to getting it done.

[00:12:16.16] 

So it's already a pretty tough environment for bills to get passed on such a highly politicized topic. But then you add in what you called seismic events or dumb luck that you add on top of this already tough environment. What are some of those seismic events?

[00:12:38.06] 

Yeah, no, it's exactly true. And unfortunately true. And it's very difficult for young people especially to appreciate that the best of your intentions, of the best of your principal positions, some things happen which are completely out of our control. Just look at the last 20 years, which I call the modern history of immigration. And it was modern history just because in year 2000, President Bush had gotten elected in the U.S. president Fox had gotten elected in Mexico. And these are two leaders aligned on immigration. What needed to happen. And it was actually a framework that was given birth to by our own institute, MPI, on a framework, the Grand Bargain. And there was Republican and Democratic support. And this bill was going to happen. And 9/11 happened, which made thinking and dealing with immigration impossible for next six to seven years. Now, obviously no one predicted 9/11. Then the Great Recession of 2008 happened when people saw President Obama, this constitutional law professor, the deep root in sort of immigrant rights, and all this is going to happen now. And the Great Recession happened. It made even big, even bringing immigration bill to the floor so hard when the country was going through some economic downturn.

[00:13:55.02] 

And then election of Trump, which obviously changed the whole whole debate about immigration in the country and any opportunity for reform. And then you could now say the pandemic. All these four things are mega events and no one could have predicted with deep and long consequences on the progress on immigration. So one has to be at some level reasonably kind of humble about these things that look, some things we just do not control.

[00:14:26.24] 

It's interesting because we are talking so much about how difficult it is to get immigration legislation through Congress to make any broad reform to the system. But at the same time, there has been this bipartisan consensus where maybe up until recently, in terms of increasing spending on immigration enforcement, you know, MPI itself has found that since, since 2003, the federal government has spent more on the immigration enforcement agencies than on the principal federal criminal law enforcement agencies, all of them combined. And so why do we see this special treatment of enforcement?

[00:15:21.05] 

No, you're so right to point out, and you have done some really good work on the subject yourself, and you are a product of a time when all this happened. That is ironic that the 20 years that we talked about where nothing happened on immigration, we just celebrated or memorialized the 20th anniversary of 9/11. And 9/11 was a dramatic event in the history of our country. But one thing it did also was it gave birth to DHS, a new federal agency. And the mandate of DHS was to protect the homeland and immigration was subsumed in that agency for its function. And what happened after 9/11 that since that event was so searing in the memory of the country that almost everything on immigration began to be seen from the lens of national security and so, therefore, when DHS, the new agency, was asking for any funding for anything that looked remotely connected to national security, Congress was more than willing to give you not only money you asked for, but more than you asked for. So the money for the border wall, the money for the CBP personnel, the money for technology, the money for detention, the money for data mining, the money for interoperability of the data, the money for having sort of a cooperative relations in states and localities so that every state and local cop would become an outpost of federal immigration.

[00:16:52.02] 

All this was welcomed by members of Congress. So therefore, there was strong desire to fund these agencies. And now, therefore, the impact of that funding is oversized, is outsized. You know, money has a lot of impact on policy. And along with money is information that the information that the agency gathers, then you can use it in ways which can increase enforcement. And therefore, all because of the funding and because of the use and interoperability of data that that has allowed to happen in the last 20 years has changed the nature of immigration functioning in the United States. That, especially when nothing has happened on immigration reform, all that we have seen happening is on the enforcement regime. So that's a lopsided view of how policy gets made, and that is having a really not deep effects on policy, but on the lives of immigrants and their families in the United States.

[00:17:54.18] 

With all that being said, do you have any confidence that Congress ultimately can do something broad and systemic that works in the national interest? I mean, we've seen failures of at least three comprehensive immigration reform bills in Congress in 2006, 2007 and 2013. We've also seen progress stalled on narrower items like the Dream Act, which has been introduced almost every year since 2001. Is there some ingredient that's been missing so far that can turn this around, or do we need to start thinking about the scope of immigration reform differently? Is it time to drop the idea of comprehensive reform?

[00:18:39.24] 

I finally have faith that something will happen. And it's not based on looking at tea leaves of today. It's just looking at our history. That to me, two things are going in favor of finally Congress doing something. One is that just the national interest imperative is going to catch up. And here facts do matter that we are changing as a country demographically hugely, that the birth rate is going down, baby boomers are retiring at alarming rate. So therefore, if the United States wants to remain an economic power, of course we could decide we don't want to be an economic power, but if we want to be an economic power and indeed the only superpower in the world. That cannot happen without population growth, especially growth in the labor market of able, willing and healthy workers across occupations. And just the native-born population just doesn't do it. So immigration will inevitably become an ingredient of the economic force that United States must stay as that Republicans and Democrats soon will have to acknowledge if they can put their political stripes aside. The second reason I have faith is the same poll I was talking about the difference between Democrats and Republicans and how so divergent they are on attitude towards immigration.

[00:20:07.13] 

The good news there is that the younger generations are very different about it. That the younger generation of Republicans are much more pro immigrant than the older generation of immigrants. And that's our future. It's young people like you who are the future. And if they see this much more as a bipartisan issue then our generation sees it. There is lot of hope there. So for me, both national interest and the generational change are things that we can all keep our hopes on.

[00:20:41.04] 

Speaking of the younger generation, I want to wrap up by asking whether you have any words of advice for emerging or future immigration policy analysts and thinkers.

[00:20:55.16] 

Yeah, I mean it's hard to conclude this debate without what the younger generation should think about or how they should treat this debate because the future depends on them. And I would, I would highlight four or five things. One is tell them to be optimistic. Is that it's very tempting to say my God, this stuff is so bad. The country is in such a bad place on immigration, it is never going to improve. And let's remind all of us, especially young people, this country has gone through darker, more difficult days. If you think these days of immigration are depressing, it pales in comparison to what the immigration debate was in the beginning of the 20th century. So there is just hope in history that there is always going to be a better place for immigration debate and receptivity for a fair and progressive immigration policy. Second is that I would ask them to be patient that just because ideas do not have traction today doesn't mean they won't have traction some other time. Just reminding people that the national origin quota system that came into being in 1921, it took 50 years for that to be to end.

[00:22:13.23] 

And there were some members of Congress who were at it for all those 50 years. They did not lose their patience till it actually happened. So things happen. Sometimes they take time. The third thing I would say is very important is that we have to be willing to compromise, that we can never get everything we want and the art of compromise is extremely important to develop and hone because especially the way the country is polarized. Unless we compromise on some of these things, we will not make progress. And in that regard, I would say the same thing is true about bipartisanship, that given how we have to make compromise on this, you have to be able to do that in a bipartisan way. As we know now, unless Democrats and Republicans both agree on something moving, it is not going to move. So even if we may not, we may not agree with everything between Republicans and Democrats, ultimately, whatever happens in a bipartisan way is going to be much more durable. And the next thing I would say is that, look, fights are important, principled fights are important, but victories are more important. Whatever it takes to get a victory, and if it means getting not the whole comprehensive immigration reform, as you pointed out earlier, but a part of it, that victory is worth taking.

[00:23:38.02] 

There's another day for another fight, for another piece of the compromise, immigrant reform, till it all happens. But just because the whole thing is not happening today doesn't mean we should not celebrate victory on some part of it. And the last thing I would say is that don't lose faith in the power of ideas. That people have a feeling today, given how sort of charged are politics. This is all about politics, that ideas really don't matter, not really. Whenever something called comprehensive immigration reform takes its shape in the form of a bill, any legislation that is passed by two houses and signed by the president, it will have nothing but ideas in it. They may not be ideas that you like, but they will still be ideas. And if you have to fight big ideas, you can only fight them with good ideas. So therefore, don't give up on the power of ideas, which is the very reason why MPI was born. It is about creating ideas and we should not lose faith in them.

[00:24:39.15] 

Well, that is very necessary wisdom. I think this is a great place to leave things and it's all we have time for today. I want to thank you, Muz. This has been such an interesting discussion and I very much appreciate you coming

[00:24:56.07] 

on the podcast and thank you, Jessica, and thank you for being part of MPI because young people like us are so critical to this issue. You keep us fresh and you keep us on our toes. And for that, I personally thank you.

[00:25:13.20] 

Muzaffar Chishti is a Senior Fellow at MPI and director of its office in New York, based at NYU School of Law. Thanks for tuning in to this episode of the World of Migration, MPI's 20th anniversary podcast. For more on MPI's first 20 years, please visit migrationpolicy.org/about/20th. You can find all the episodes for the World of Migration and other MPI podcasts online at migrationpolicy.org/podcasts or you can find us wherever you get your podcasts. Just search for World of Migration and please give us a review while you're there. This episode was produced by Michelle Mittelstadt and Yoseph Hamid and made possible through the assistance of Lisa Dixon. Our music is a song called Geographer by Bright Idea. My name is Jessica Bolter. Thanks again for listening.