Playing Defense on Immigration Reform
Rob Randhava
While the 111th Congress was marked by dashed hopes for the prospect of major immigration reform, immigrants’ rights advocates found themselves switching to a largely defensive posture in the first session of the 112th Congress. A change in party control in the House of Representatives following the 2010 election, along with continued high unemployment in the wake of the 2008 financial crisis, all but guaranteed that the nation’s immigration system would remain broken.
Americans for Constitutional Citizenship
The 112th Congress opened with a strong indication
of just how much things had changed as a result of the 2010 election. In the
first week of January, as the new Congress was being sworn in, immigration
restriction advocates in the House, as well as in some state legislatures,
announced they were introducing legislation that would rewrite the Citizenship
Clause of the 14th Amendment. The various proposals sought to deny
citizenship to the children of unauthorized immigrants, who receive it
automatically if they are born within the United States.
Proponents argued that changing the 14th Amendment would deter unauthorized immigration. Yet there is scant evidence that immigrants come to the United States for the sole purpose of having children. The few who do are usually economically well-off and frequently return to their home countries only to seek immigration benefits at a later date. Instead, most unauthorized immigrants are drawn by the hope of finding work and obtaining a better life; having children is simply what many people do, regardless of their immigration status.
In response, The Leadership Conference on Civil and Human Rights joined with the NAACP, ACLU, the Asian American Justice Center, the Mexican American Legal Defense and Educational Fund, The Opportunity Agenda, and other groups to announce the formation of Americans for Constitutional Citizenship, a coalition dedicated to opposing any such measures. In a January 5 press call, Wade Henderson, president and CEO of The Leadership Conference, blasted the proposals:
“For the first time since the end of the Civil War, these legislators want to pass state laws that would create two tiers of citizens – a modern-day caste system – with potentially millions of natural-born Americans being treated as somehow less than entitled to the equal protection of the laws that our nation has struggled so hard to guarantee. The purported purpose of this insidious proposal is to help reform our nation’s immigration system. But the real purpose in creating a two-tiered group of citizens is something far darker, far more divisive and we believe, decidedly un-American.”
Civil rights advocates pointed out that measures to alter our citizenship law would contravene the original intent of the 14th Amendment and would have drastic negative policy consequences. They also warned that any such effort at the state level would be blatantly unconstitutional.
By March, the Americans for Constitutional Citizenship coalition had grown to include more than 80 national organizations, as well as many prominent individuals from across the political spectrum. Since its formation, however, the coalition has had little to do, to the relief of its membership. The leadership of both parties in Congress indicated that they would not allow any proposed constitutional amendment to come up for a vote. Moreover, the key sponsor of the amendment in the House, Rep. Steve King, R. Iowa, was blocked from becoming chairman of the House Immigration Subcommittee even though he was the most senior member of the panel. Proposals at the state level have also failed to gain traction, although it is possible that they may be revitalized as a campaign “wedge” issue leading up to the 2012 election.
Efforts to Restrict Immigration in the House
While the effort to undo the 14th Amendment
quickly fizzled, the new House majority has continued an array of hostile
efforts toward unauthorized immigrants. In addition to holding hearings
designed to incorrectly link immigrants to the nation’s ongoing economic woes,
many members of Congress introduced heavy-handed enforcement measures.
In one such hearing, the House Immigration Subcomm-ittee set out to advance the myth that unauthorized immigrants are to blame for high unemployment in the African-American community. Wade Henderson was invited to testify as the lone witness on behalf of immigration and civil rights advocates. In his testimony, he argued several points. First, Henderson said, economists are in disagreement over whether immigrants cause unemployment among native-born workers, because immigrants also spur economic demand that can offset competition for jobs. Second, he noted that the causes of high African-American unemployment rates are widespread and existed long before our current high levels of unauthorized immigration. Finally, he questioned the motives of many of the advocates who feed myths about immigrants causing African-American unemployment, as many of them do not show much interest in the economic well-being of African Americans in other contexts such as education, health care, or consumer protection.
The most significant legislative effort undertaken to date in the 112th Congress has been a proposal by House Judiciary Committee Chairman Lamar Smith, R. Texas, to require all employers to use the Electronic Employment Verification System, also known as E-Verify. The system aims to ensure that employees are citizens, legal residents, or otherwise eligible to work under U.S. immigration law. But the existing system is rife with errors, and would encourage the use of racial and ethnic profiling, preventing many eligible people from obtaining jobs.
The Leadership Conference and many of its member organizations spoke out against the measure while continuing to urge a more comprehensive overhaul of our immigration system. The bill had only lukewarm support from the more strident advocates of reduced immigration because it had been weakened to placate the concerns of the business lobby. Moreover, the E-Verify bill was brought up in a House that has generally shown tremendous hostility to federal regulations on businesses, and this bill would impose a massive new regulatory regime on those same businesses. As a result, even though the bill was voted out of the House Judiciary Committee, its future prospects appear uncertain.
The House Judiciary Committee also attempted to move legislation that would expand the use of immigration detention, undermining the due process protections established by several U.S. Supreme Court rulings in the past decade. Meanwhile, some more immigrant-friendly bills such as the DREAM Act, which would establish a path to legalization for immigrants brought to the U.S. as children, have been introduced in the Senate. As with E-Verify, however, most immigration bills appear unlikely to move in the 112th Congress, particularly in the continued absence of a bipartisan effort to enact a comprehensive immigration overhaul.
Deportations at an All-Time High
For years, opponents of comprehensive immigration reform have
argued that the existing laws against unauthorized immigration must be enforced
before Congress can turn its attention to the prospect of legalizing people who
are already here, making it easier for employers to hire immigrants legally, or
addressing long-needed improvements to family-based visa systems. They have
focused much of their criticism on President Obama, who has frequently spoken
out in favor of comprehensive reform, accusing him of failing to enforce the
laws.
Statistics from the first three years of the Obama presidency have shown these criticisms to be wildly off the mark. For three years in a row, the government under Obama has set new records in the number of unauthorized immigrants who have been deported. In Fiscal Year 2011, the administration’s policies resulted in the deportation of nearly 400,000 immigrants. More than half of those deported had felony or misdemeanor convictions. At the same time, the number of arrests at the southern U.S. border have fallen significantly in recent years, including a 25 percent drop in the past year, showing that fewer people are crossing the border unlawfully.
The Obama administration has faced more legitimate criticism by immigration advocates, who have characterized recent policies as being too heavy-handed. Significant numbers of deportees have no criminal record or, under the “Secure Communities” program, have been removed for very minor legal infractions. In November, civil rights advocates were relieved to hear the administration’s announcement that it would train immigration enforcement officers to exercise more discretion in non-criminal deportation cases.
Prospects in 2012 and Beyond
As the 112th Congress
moves into its second session, there are few signs that the partisanship that
marked the first session would improve. Indeed, with a contentious presidential
election less than a year away, experience suggests that tensions in Congress
will only grow worse. When combined with persistent high unemployment and
economic stagnation, it appears unlikely that we will see any serious attempt
by Congress to undertake immigration reform. Instead, most of the focus of
civil and human rights advocates will remain on overturning the recent spate of
anti-immigrant laws in Alabama, Georgia, and a handful of other states.
The prospects for immigration reform beyond 2012 are harder to predict. On an encouraging note, several contenders for the Republican presidential nomination have argued that their party must take a more “humane” approach to immigration, sounding a note similar to that of former President George W. Bush. It is conceivable that the hardened attitudes of the past several years could eventually soften, particularly if the economy shows more signs of recovery. It would be a mistake, however, to underestimate the complexity of the immigration issue or the political controversy that it generates.
Rob Randhava is senior counsel for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund and specializes in immigration and housing/finance issues.
