The decision by Senate Democrats not to filibuster the Laken Riley Act is politically significant. It indicates that congressional Democrats will no longer hold immigration enforcement measures hostage to a broad grant of legalization for those currently residing in the country illegally.
Substantively, however, both proponents and opponents of the act are misconstruing or misrepresenting it, obscuring the policy choices made by the act itself and the political decision by Democrats not to obstruct it.
My own views on immigration, in addition to providing fair notice to readers, actually provide a useful frame of reference to sort out what the act does and doesn’t do.
I favor amnesty and some form of legal status for most of those in the country illegally. If combined with the mandatory use of E-Verify, a federal program to electronically confirm legal work status, and asylum reform, I don’t think such a general amnesty would become an invitation to continued illegal immigration leading to another general amnesty down the road. The combination of mandatory E-Verify and asylum reform would effectively lock illegal immigrants out of the formal economy and eliminate questionable asylum claims as a ticket into the country for at least several years.
However, I don’t think our immigration laws shouldn’t be enforced pending such a broad grant of amnesty. That undermines the rule of law and, as we’ve seen, breeds a political backlash. Nor do I believe that better enforcement of our immigration laws should be held hostage, politically, for such a broad grant of amnesty, as Democrats have done for decades.
Which brings us to the Laken Riley Act. According to proponents, it’s a mechanism to remove and deport violent criminal illegal immigrants. According to opponents, it would punish low-level property offenses without due process of law. Neither characterization gets the policy choices of the act correct.
The Laken Riley Act would require that illegal immigrants charged with burglary, theft, larceny or shoplifting be subject to an immigration detainer, and be detained by the Department of Homeland Security.
Now, under our immigration laws, all illegal immigrants are subject to detention and deportation. That’s what’s supposed to happen. Due to resource and other constraints, it doesn’t happen very frequently. There isn’t much of an internal effort made to locate illegal immigrants and there isn’t much capacity to detain them if located.
The detention contemplated by the Laken Riley Act isn’t punishment for the underlying property offenses for which the illegal immigrant was charged. It is not turning a blind eye to their violation of our immigration laws.
Those so detained are not being deprived of due process. They will get every element of due process if their criminal case proceeds. If they are subject to deportation, they will get every element of due process in our immigration laws.
The harsh criticism being directed at Democrats supporting the act, including Arizona’s Mark Kelly and Ruben Gallego, is unfair and inaccurate. They are not supporting punishing people for low-level property crimes without due process. The detention is for their violation of immigration laws, not their alleged crimes. Kelly, Gallego, et al are simply voting not to turn a complete blind eye to the immigration law violations that surfaced as a result of their criminal charges.
The effect of this detention requirement is likely to be limited. For DHS to actually take custody in these circumstances will necessitate a high degree of cooperation from local law enforcement officials, both in identifying illegal status and honoring the DHS detainer request. There are so-called sanctuary cities throughout the country that refuse to cooperate with immigration enforcement in either respect.
Nothing in the Laken Riley Act compels such cooperation. I suspect that will be something congressional Republicans attempt in future reform measures. I would favor that as well. Our immigration laws should be enforced as effectively as possible as they exist, even if there are good arguments that they should be changed. Cooperation between federal immigration officials and local law enforcement is a vital element of enforcing our immigration laws whatever they may be.
That, however, is a policy decision for another day. For today, the persistence of sanctuary cities will seriously circumscribe the effect the Laken Riley Act will have in much of the country.
The real problem with the Laken Riley Act is the license it gives state attorneys general to sue the federal government for various alleged failures to enforce immigration laws. The last thing the country needs is more policy decisions made through litigation, particularly regarding immigration.
State attorneys general have become rogue and largely unaccountable policy litigators. And it is never ending. When a Republican is president, virtually everything he attempts is challenged in court by Democratic state attorneys general. When a Democrat is president, GOP attorneys general take over the litigation portfolio.
Under the separation of powers, government policy is supposed to be settled in the elective branches, the legislature and the executive, not the judicial branch. There are far from sufficient resources to enforce our immigration laws as written. While a blind eye shouldn’t be turned to immigration violations, any administration is going to have to set priorities and make choices. Judges shouldn’t be second-guessing or usurping those choices.
Given that this provision would apply, in the first instance, to the Trump administration, perhaps it can get lost on the way to enactment. Do the immigration hardliners in the Trump administration, beginning with the man assuming the big chair, really want to delegate the immigration enforcement trade-offs needed to optimize limited resources to Texas AG Ken Paxton and Texas District Court judges?
Let’s turn back to the politics. Last year’s asylum reform was the first indication that Democrats would no longer be holding improved immigration enforcement hostage to legalization. Democrats supported it even though it contained no legalization provisions.
The decision not to filibuster the Laken Riley Act is a much stronger signal. Immigration rights groups didn’t kick up too big of a fuss over the asylum reform. They are kicking up a mighty fuss over the Laken Riley Act. Yet Democrats seem politically prepared to facilitate its passage into law nevertheless.
For decades, immigration reform has been caught in a political stalemate. Democrats wouldn’t support better enforcement without a broad grant of legalization. Republicans insisted that better immigration enforcement precede legalization. And there was ample reason to doubt that Republicans would support broad legalization irrespective of what enforcement mechanisms were put in place.
It appears that Democrats have decided to blink. Even as someone who supports a broad amnesty, I think that’s a step in the right direction.
Bill Buckley, who favored reform in a more libertarian direction, once observed that the fastest way to reform drug laws would be to universally enforce them. I suspect that might also be true regarding our immigration laws.
There are millions of people, and millions of kids, in blended families, where some members of the immediate family are here legally and some are not. Most of those here illegally have been in the U.S. for some time and have established settled and productive lives in this country. Any aggressive immigration enforcement directed at the existing illegal population will yield an endless series of heart-rending, poignant stories.
The body politic believes, with considerable justification, that the federal government has turned a blind eye to illegal immigration, and they wanted an end to it. That was a large component of the GOP success this last election.
I don’t believe, however, that the body politic will support the large-scale breakup of families and the wholesale deportation of people with settled and productive lives they have created in this country. If there is reassurance that a blind eye won’t be turned to future illegal immigration — and that the federal government has the tools, and the willingness to use the tools, to keep it under manageable proportions — I believe a broad amnesty will become not only politically doable but politically compelling.
Paradoxically, by stepping aside on immigration enforcement, Democrats may be hastening the day for a broad amnesty for those currently in the country illegally.
Editor's note: Retired Arizona journalist Robert Robb opines about politics and public policy on Substack. Reach him at robtrobb@gmail.com. Please send your comments to AzOpinions@iniusa.org. We are committed to publishing a wide variety of reader opinions, as long as they meet our Civility Guidelines.
Share with others
