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Immigration & Assimilation

The Immigration Impasse

The Right’s division on immigration cuts across the usual lines: There are social conservatives, hawks, and economic conservatives in each camp. The division goes deep: It reflects differences about not only what policies the government should adopt but the moral convictions that should underlie them and the political strategies that should accompany them. One thing all of these camps share, however, is a lack of political realism.

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Truth and Consequences: The impact of repealing "Birthright Citizenship"

Welcoming Remarks:

  • Caroline Fredrickson, Executive Director, American Constitution Society for Law and Policy 

The panel will feature:

  • ModeratorAngela Maria Kelley, VP for Immigration Policy and Advocacy, Center for American Progress
  • Sam Fulwood III, Senior Fellow, Center for American Progress
  • Wade Henderson, President and CEO, The Leadership Conference on Civil and Human Rights
  • Priscilla Huang, Associate Policy Director, Asian & Pacific Islander American Health Forum 
  • Margaret Stock, Adjunct Instructor, University of Alaska Anchorage

Boneheaded Birthright Citizenship Fight

Jen is right on both the substance and politics of a GOP move to revoke birthright citizenship from children born to illegal aliens. As I’ve written here and here , the 14th Amendment was carefully drawn and debated to exclude only two categories of persons: the children of diplomats and children born on Indian reservations that were deemed sovereign territories at the time.

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Answering the Critics of Comprehensive Immigration Reform

Argument #1: "Immigration reform will harm taxpayers." Response: Legalizing both the flow of workers and the workers already here will help taxpayers by raising the newly legalized workers' productivity, their earnings, and the likelihood that they will pay taxes in the formal economy.

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Eastman is wrong: the Constitution does guarantee birthright citizenship

John Eastman has taken me to task for what he calls my misreading of the language and history of the 14th Amendment in a recent op-ed I wrote for The Wall Street Journal. We’ve known each other for decades, and I consider Eastman a friend, but he’s simply wrong in thinking the children born to illegal immigrants in the United States are not entitled to birthright citizenship under the 14th Amendment.

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Born in the USA?: The historical and constitutional underpinnings of Birthright Citizenship

On March 31, 2011, the American Constitution Society and the Center for American Progress brought together leading thinkers to discuss current challenges to birthright citizenship and provide historical perspective to the debate about what the 14th Amendment guarantees.  

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Declare Victory and Act

A Texas judge handed the GOP a gift this week by issuing a temporary restraining order barring the Obama administration from granting temporary status and permission to work to some four million illegal immigrants. But it's unclear whether the party's congressional leaders will be able to convince their members to declare victory and move on to vote for a clean bill funding the Department of Homeland Security, without House-passed immigration amendments. They'd be smart to do so, because the alternative would virtually guarantee that DHS will run out of funding at the end of the month.

If that happens, there is no question which party will bear the blame. Polls show that a majority of Americans (53 percent in a recent CNN survey) would blame Republicans for a DHS shutdown, just as they did in 2013 when squabbles over funding for Obamacare led to a 16-day government-wide shutdown. In that debacle, support for the GOP fell dramatically, with only 32 percent of Americans saying they held a favorable view of the party in a Gallup poll after the shutdown. It took a year before Republicans gained back the support they'd lost, ultimately winning a huge victory in last fall's election.

Judge Andrew Hanen's 123-page memorandum and order isn't the final say on whether the administration's executive action is lawful. The administration already has announced that it will appeal the order in the Fifth Circuit. In the meantime, the order could provide some space for a more levelheaded approach to immigration.

First, it's important to understand what Hanen's opinion says and doesn't say. The opinion deals with only three issues: whether the plaintiffs -- 26 states, including Texas -- had standing to sue; whether DHS has the authority to defer deportation and grant other relief for parents of Americans and lawful permanent residents (the so-called DAPA directive); and whether DAPA was legally adopted.

The judge's opinion deals definitely with only two of these issues. First, Hanen determined that at least one of the states, Texas, had standing to sue because DAPA imposed a financial burden on the state to provide certain benefits -- namely, driver's licenses, which Texas claimed would cost nearly $200 per eligible immigrant.

Second, the judge determined that in promulgating DAPA, DHS did not follow the proper procedural requirements under the Administrative Procedure Act. He reached no conclusion on whether the administration's actions were constitutional. In doing so, he followed the judicial principle that if there is a non-constitutional ground for deciding a case, the court prudently avoids making a judgment on its constitutionality.

The practical effect of the decision is to affirm the status quo. Some 11 million people will continue to live in the shadows -- unless Congress acts.

The administration -- with the court's blessing -- can refrain from removing all but the most dangerous criminals, terrorists and others DHS deems a priority for removal. Hanen explicitly conceded that the DHS secretary "has the legal authority to set (enforcement) priorities, and this court finds nothing unlawful about the secretary's priorities." But unless a higher court overturns the order, the administration can't provide four million illegal immigrants with the right to work legally.

Republicans should use this opportunity to do what they've failed to do for going on a decade. The 11 million people in the U.S. illegally are not going away. No serious elected official argues that the government should round them all up and deport them -- and the American people would overwhelmingly reject the human and economic costs such a plan would entail.

Americans support granting legal status to the very people DAPA intended to help: illegal immigrants who have set down roots here, work, pay taxes and live otherwise law-abiding lives. But they want the problem of what to do about illegal immigrants to be solved through the normal legislative process. Instead of tacking on amendments to appropriations bills, House Republicans should hold hearings on the best way to grant relief to the parents of U.S. citizens and legal residents. And in the meantime, they shouldn't hold DHS funding hostage.

The Constitutionality of Arizona SB 1070 and other state immigration laws

The Issue Brief also illuminates the question of to what extent SB 1070 and similar state laws permit racial profiling, and concludes that such profiling “is not merely incipient in the statute (and proposed copycats in Florida, Michigan, Rhode Island and South Carolina), it is expressly authorized.”

Click Here to Download the Issue Brief.

The Right GOP Response to Obama's Actions

Now that President Obama has acted to defer deportation for some four to five million illegal immigrants, all eyes will be on the Republican Party's response. How they handle the challenge may well shape the future of the party and the country.

Provocateurs will urge defiance. Retiring Oklahoma Sen. Tom Coburn even suggested, "You're going to see -- hopefully not -- but you could see instances of anarchy. You could see violence." More likely will be attempts to defund the president's order and legal challenges to his constitutional authority.

I would counsel a different reaction: Don't take the bait.

Sure, the president acted undemocratically -- that's nothing new with this man. He is contemptuous of the American people and Congress, ignoring even members within his own party.

But the fact is, he unwittingly may have done Republicans a favor by taking action to fashion relief for those illegal immigrants who've established deep roots and whose labor and economic contributions the country needs. Americans, by large majorities, favor the substance of what the president has done -- if not the process he chose -- according to polls on the subject in recent years.

Moreover, most Republicans, including most GOP members of Congress, have zero interest in deporting millions of otherwise law-abiding unauthorized immigrants. So why not let the president take the heat for having come up with an alternative to deportation?

Do Republicans really want to make the case for separating parents from their American-born children, especially young ones? Who benefits from preventing parents from working -- legally, and paying taxes -- so that they can care for their own families and help fund government services? Why would Republicans want to deny jobs to people who eagerly seek them in order to "protect" those jobs for workers who've demonstrated they won't take them?

Smart GOP lawmakers will give speeches decrying the president's usurpation of power but lay off the beneficiaries of the executive order. It doesn't advance Republicans' values to demonize parents of American citizens, who make up most of the people affected by the president's order.

The rule of law is important -- it is the foundational basis for our system of government. But not all laws are created equal. We have a broken system of immigration laws that desperately need fixing. And Republicans now have the choice -- and the numbers in Congress -- to fix them.

Republicans have long argued that border security is the main issue. Secure the border, and then address immigration reform, they say. But like it or not, the latter is the necessary first step to accomplish the former.

Since passage of the 1986 Immigration Reform and Control Act, we have spent well in excess of $225 billion (in current dollars) enforcing our immigration laws, according to a report by former U.S. Immigration and Naturalization Service Commissioner Doris Meissner. In 2012 alone, we spent more on enforcing our borders than on all other federal criminal law enforcement -- nearly a quarter more than we did on the FBI, ATF, DEA, Secret Service and U.S. Marshals Service combined!

And, guess what? It's worked -- or at least made a big dent in the problem. Illegal immigration has plummeted over the past several years and is now down to levels not seen since 1972. Republicans should take credit for helping stem the flow instead of pretending that we're experiencing an increase of illegal border crossers.

Our economy needs an expanding workforce. The retiring baby boomers alone will strain our ability to fill jobs much less pay for Social Security and Medicare in the years ahead. We should be welcoming young workers, not making it difficult to impossible for newcomers to gain access to jobs Americans can't or won't fill.

Republicans have an opportunity to fashion good legislative policy despite executive overreach. Is there no one among them brave enough to stand up and say let's draft meaningful reform and make our borders more secure by providing legal ways for workers to come here? The American people want that kind of leadership. They want action, not angry talk and threats.