Tuesday, June 25, 2013

Daniel Morales, CIR that doesn’t institutionalize forgiveness is not comprehensive



As the debate over Comprehensive Immigration Reform heats up, the focus on sealing “the border” (that is, our southern border with Mexico) has turned myopic. The Corker-Hoeven amendment, recently embraced by the senate, is only the latest sop to the enforcement-first constituency—the primacy of enforcement was baked-in to the compromise from the beginning. The Obama administration always knew that attention to the border and increased deportations were a prerequisite to CIR; that’s why it has spent the last six years deporting migrants in droves and massively expanding the border-industrial-complex.

What we’re learning as CIR wends its way through Congress, though, is that the desire for enforcement among certain constituencies has virtually no limit. Obama’s vast enforcement expenditures were not enough to secure passage of a path to citizenship for the 11 million undocumented people waiting in the wings, nor were the increased enforcement goals included in the “Gang of Eight’s” original compromise bill. The enforcement-first folks want more. Specifically, they want a perfectly controlled, multi-thousand mile land border with Mexico. Set aside the question of whether perfect border enforcement is even possible, and consider the gross inefficiency of it all. The Corker-Hoeven amendment is expected to cost 40 billion dollars over ten years, and this comes after a multi-billion dollar run-up in immigration enforcement expenses over the prior decade.

All this money just to keep people from working! Work used to be the way that immigrants of all stripes proved their commitment to the American project and earned their right to belong. Now we choose to spend billions of dollars in a resource-scarce environment to keep migrants from picking up a hammer.

But real politick is what it is, I suppose. In the short run, the shape of the legislative bargain probably can’t be altered. But it should be. Promising the citizenry perfect enforcement going forward in exchange for a path to citizenship for 11 million undocumented people sets comprehensive immigration reform up for failure in the long run. Why? Enforcement seriousness will wane eventually—if only because of the outrageous cost to curb a basically benign phenomenon—and, moreover, we cannot accurately predict today the source or motivations of future undocumented populations, or perfectly allocate legal visas. If my predictions are right, then sizeable undocumented populations may re-emerge, and if they do the vitriol directed at this group of future laborers will be histrionic. “Government” or “liberals” will be portrayed as having betrayed the bargain of CIR, and the new group of undocumented people will suffer mightily for it.

What CIR needs to be truly comprehensive is a method of correcting for inevitable imperfections in enforcement efforts and visa allocation. Alongside mandates, like Corker-Hoeven that seek to institutionalize enforcement, we need procedures that institutionalize forgiveness and recognize that a single unlawful act should not permanently disable someone from making a claim to be an American. Specifically, there ought to be a more robust system for normalizing the legal status of those who continue to migrate outside the law, reside in the U.S. for lengthy periods, and are otherwise law-abiding.

The trick is to design this system so that it can survive intact during predictable spikes in anti-immigrant sentiment. In my latest piece I argue that the key to achieving this goal is to place the power to convert unlawful migrants to legal ones in the right political body. The usual suspects are not up to the task. The administrative state doesn’t have the political legitimacy or autonomy. Congress and the President can’t do it because the politics of migration are so toxic that legalizing people piecemeal (and in large enough numbers to make a difference in the size of the undocumented population) isn’t worth the blowback that they will surely receive from doing so. And the judiciary can’t either, because it’s too insulated from politics to be granted such authority for long.

What else is there? I look to the jury—a legal decisionmaking body that has strong democratic bona fides. Let immigration juries decide, in a legally disciplined way, which law-abiding, long-term migrants are granted lawful status, and which have to return to their countries of origin. Giving juries this kind of authority will keep future undocumented populations in check and in a way that still recognizes valid claims for earned inclusion in our political community.

Many readers on this site will immediately object to granting juries this authority because they think they juries will act prejudicially, or that their decisionmaking will be arbitrary or inconsistent. However, scholars of juries have shown that these concerns are exaggerated and that large, diverse juries produce unprejudiced decisions. Admittedly, the diversity that might matter most—non-citizen status—probably won’t be present in an immigration jury for political reasons. (The legitimacy of the decision to grant status will in some important part derive from the fact that those with full membership will be adjudicating the status of those without it.) But Latino citizens will serve, along with others who feel more like outsiders than insiders, despite their legal status. I think this imperfect diversity, along with the concreteness of the person standing before the jury, telling her story of migration, toil, hope, and faith in the American dream, will be enough for jurors to see past status and legalize many “illegal” aliens in the future. There may be other,r and better ways to accomplish the goals I’ve set out; my point is as much to provoke creative thought in others as to set forth a policy proposal. The issues I raise here, and in more detail in my essay, have been relatively neglected, and they shouldn’t be. The last thing we want is to be re-hashing this tired political debate three-decades hence.

Daniel Morales is a law professor at DePaul.


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