Congressional Inaction and Hypocrisy on Illegal Immigration

House Democrats announced this week that they are launching an investigation into the Trump Administration’s Migrant Protection Protocols (MPP) program, known colloquially as the “Remain in Mexico” policy.

It’s the latest attempt by Democrats to undo the Trump Administration’s aggressive—and, so far, successful—policies to reduce illegal migration at the southern border.

For a policy that has roiled the country for the better part of the last two years, the state of the border and the president’s response to it has not received much mainstream attention lately. But the president slowly has been inching toward fulfilling his campaign promise to reduce illegal migration, both with policy changes and a wall at the southern border.

The MPP is the centerpiece of the administration’s work. Under the policy, migrants seeking to cross illegally and claim asylum are no longer let in and released into the United States to wait for years until their case is heard. Rather, they are sent to border facilities in Central America to await their asylum hearings there. The administration has also set up “tent courts” in Brownsville and Laredo to facilitate asylum adjudication, attempting to reduce to weeks what has had a backlog of years.

In addition to MPP, the administration has negotiated asylum agreements with several Central American countries. These agreements are based on the “safe third country” principle⁠—the prevailing standard for asylum seekers in the European Union and Canada⁠—which requires asylum seekers to stay in the first safe country they enter.

These carefully negotiated policy developments, along with continued construction of the border wall, resulted in illegal migration dropping for the seventh straight month in December⁠—the first time since 2012 that border crossings have fallen from November to December. The 40,000 illegal migrants arrested or turned away at the border in December is around a quarter of the total number of detained crossers in May.

The programs are not without controversy, of course. Hosting migrants in Central America is not ideal, either from a logistics, facilities, or security standpoint. But neither is hosting them in overcrowded, underresourced facilities on our own border. And neither is a porous border that allows human trafficking and abuse of women and girls to flourish. And neither is a catch-and-release program that simply allows illegal crossers to vanish into the interior of the country, into a permanent underclass of noncitizens.

None of these situations represents the ideal. But the fact remains that every president has and continues to struggle with illegal immigration at the southern border for the same reason: Congress flat out refuses to do anything about it except complain.

Deporter-in-Chief

Presidents over the last two decades, particularly Obama and Trump, have been confronted with the same problems at the border, with the same limited toolbox. And, by and large, they’ve chosen to address the issue in similar ways.

Though Democrats have rent their garments and gnashed their teeth over the cruelty of the Trump administration’s policies, they usually fail to acknowledge (in the same way they largely failed to acknowledge then) that President Obama implemented many of the same solutions as Trump⁠—and sometimes with harsher penalties.

When dealing with a surge of unaccompanied minors in 2013, Obama famously told them not to come. “Do not send your children to the borders,” Obama said in an interview. “If they do make it, they’ll get sent back. More importantly, they may not make it.”

Obama went on, “We don’t even know how many of these kids don’t make it, and may have been waylaid into sex trafficking, or killed because they fell off a train,” echoing lines Trump would also use, though the pundits would immediately claim he was lying despite very obvious evidence to the contrary.

Regardless, due in part to the fact that President Obama had just issued the Deferred Action for Childhood Arrivals (DACA) program, granting work status to children brought to the U.S. illegally, the warning fell on deaf ears. The border was soon overwhelmed with families and children who were held in overcrowded and underfunded facilities. The photos of children in cages, sleeping on the floor, were published by multiple news outlets and House Democrats in an attempt to shame the Trump Administration⁠—only to be awkwardly taken down when revealed to be from 2014, during Obama’s tenure.

Obama in 2014 petitioned Congress for close to $4 billion to address illegal border crossings, and routinely deployed national guard troops to buttress Customs and Border Patrol. All told, his administration deported more than 3 million people, with more than 1 million of those during his first term.

Though you’d never know it by the media rhetoric, Trump has deported less than 900,000 people during the same time period. And even while tightening discretion for issuing legal status, approval for legal permanent residencies⁠—including citizenship applications⁠—reached a five year high under the Trump administration in 2018.

Sustained Congressional Passivity

The Trump Administration has also taken heat for its attempts to identify illegal aliens for deportation. Yet, the Obama Administration embarked upon this effort on a grand scale by expanding the use of a Bush-era legacy program known as Secure Communities. The program used little-known information sharing requirements to collect fingerprints of people booked into local jails across the country to identify illegal immigrants for deportation. Democrats in Congress, who did nothing about this under the Obama Administration, have managed to rouse themselves from their legislative stupor to make sure Trump cannot do the same thing.

The point here is not “whataboutism.” Rather, it’s simply to acknowledge the reality that sustained congressional passivity when it comes to immigration policy usually leads to frustrated presidents relying on a similar set of policies.

Trump’s actions on immigration are not actually that far outside of the mainstream. Moreover, President Obama had the advantage of receiving far more resources to address the border than President Trump, perhaps because his immigration policies, though in many ways similar to those of his reviled successor, received far less scrutiny from Congress or the media.

President Trump, meanwhile, has faced intransigence from congressional Democrats, who loudly complain about overcrowded facilities and suboptimal conditions while at the same time refusing to appropriate funds to house the overflow⁠—or to take action to address the laws that allow the policies they so roundly denounce.

What is markedly different about the Trump Administration’s approach, however, is its sustained commitment to addressing illegal immigration. Unlike previous administrations, which have simply scrambled to respond when the flow of illegal migrants overwhelms border facilities, the Trump Administration doggedly has pursued the illegal immigration problem whether it is in⁠—or out⁠—of the news cycle.

In doing so, they’ve cobbled together creative solutions that involve relying on cooperation from Central American countries to house asylum seekers, and using the decades-long cessation of legislative power from Congress to access funds for a border wall.

While not perfect, these policies are reducing the flow of illegal crossers, and with it, the ability of cartels to reap billions from human exploitation, primarily of women and girls.

This is paired with the work the administration has done to initiate merit-based reform of our legal immigration system, reforms that will put the U.S. in line with the immigration systems in countries like Canada, New Zealand, and Japan.

All told, the Trump Administration has had remarkable success in addressing a vexing problem that Congress seems determined to ignore. They’re too busy impeaching, or naming post offices, or whatever it is they do now.

It is Congress, rather than the executive branch, that should be held to account for repeatedly failing to act in an area that so desperately needs legal clarity.

In the meantime, presidents will continue to use the limited tools and legal discretion available to them to reduce the undeniable problem of illegal crossings. On this front, especially when coupled with his administration’s smart proposals to reform an outdated, clunky legal system, Trump deserves far more credit than anyone in Washington is willing to give him.

About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.

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