Category: path to citizenship

Prosecutorial discretion is the art of the possible

The quotable Prussian. (Public Domain)

The quotable Prussian. (Public Domain)

I thought of a shorter way of expressing my post from yesterday. It starts with the well-worn Bismarck adage that politics is “the art of the possible, the attainable — the art of the next best.”

A broad legalization is what people (including a majority of Americans in polls) have been wanting Congress to do about the unauthorized population for many years. Congress has not acted. So the President is left to do what he can, to achieve what is possible in this area.

What is “possible” is what the President can succeed politically at doing without Congress.

He has judged that he could not succeed politically at just stopping deportations. Understandably, he says this would extremely overstep his authority in the Constitution, and could set a bad precedent. Unsaid is that this would also cause a major spat with Republicans in Congress (who could say it’s impeachable).

However, he can succeed politically at deferring the deportation of groups of unauthorized people who politicians find it difficult to inveigh against. People brought here as children, and now family of members of the military and veterans, for instance.

In our ossified system, action is limited to “special” executive discretion at the limits of where Congress refuses to legislate. People have been worried that gridlock may lead to more unilateral executive action, but in reality the practice seems less than grand. Politics is a form of opportunism — and the only opportunity that exists is to nibble at the edges of problems Congress pointedly ignores. Whether the executive correctly surveys the full scope of its opportunities is another matter.

Politics and the piece-by-piece semi-legalization of an Arizona family

Meet the Zermeños. They’re an Arizona family, but only one of them is a US citizen. The citizen Zermenño, Gabriel, is in the military. His father José and his sisters all lack legal status.

It seems cruel and inhumane that someone who is serving in the military for the United States might face the deportation of a loved one. It also presents a problem to the mission of the military if its personnel are distracted from their duties overseas because they have to help defend relatives against deportation. So President Obama is making official an informal policy laid out in 2010 by DHS, where unauthorized relatives of military personnel can apply for “parole in place,” meaning they can apply for legal status in the United States without having to return to their home countries for ten years beforehand like normal.

José Zermeño is planning to apply for this program. Gabriel’s sisters have applied for Deferred Action for Childhood Arrivals (DACA). Read from the other direction, it may seem cruel that US citizen Gabriel’s sisters are allowed to stay, but their father, who raised them on his own in America, is not. That would suggest the logic of extending the logic of DACA to parents of US citizens, even without a special program for the people connected to the military. So, once you begin acknowledging that it’s worth it to grant leave to some people despite their immigration status, you realize that legitimate grounds apply to a whole range of people. This is one of the compelling logics for a broad legalization, of course.

All this gets to an infuriating and contradictory aspect of the immigration argument. On one hand, there is a rather clear general principle supporting a broad legalization. On the other hand, without Congressional action, that principle can only find expression in well-defined areas that would seem very difficult to contest politically. It’s a clear moral and policy judgment, pressed through a distorting political filter.

Of course, President Obama is taking this action amid increasingly dim prospects for immigration reform any time soon. The extent of this authority to carve out these areas of non-enforcement is disputed. This heckler says the president can stop all deportations. The president replies he cannot ignore whole sections of law (but can use discretion to decline to do some enforcement). Everyone agrees that the temporary nature of deferred action is not as good as the permanent nature of a final Congressional legalization. The push to move forward without Congressional approval relies on the perception that there is some middle ground for maneuver.

In practice, the “middle ground”  comprises the areas where there is perceived political license that permits deferred action — areas that encompass people whom it is very difficult to argue against, such people who were brought to the US as children, or who have raised people who have risked their life for the United States. These are subjective political judgments, made when Americans back a path to citizenship for the bulk of the unauthorized population by large majorities. So why not a broader program? The perception is that such a policy would need to go through Congress. Why wouldn’t the more limited one need to? Why are certain people harmed by the sad dysfunction of Congress more than others? There’s a consistent and universal principle at work here — that there should be a general legalization — but as long as Congress remains still on the issue, where that principle is exercised basically comes down to a necessarily rough reading of the political landscape. These are subjective judgments to make, and in making them it is wise not to arguably make the path to reform more difficult accidentally by deferring action for a population that anyone feels they can argue strongly against. How some people perceive other people to judge still other “groups” of people becomes a motivating criterion. (Perceive being the important word.)

So, a more normal life in America must proceed piece-by-piece for a family like the Zermeños. Still, millions will benefit from no program like this, despite the fact that the humanitarian and public-benefit criteria of deferred action might also very plausibly apply to them. The basic cause for such a mess is Congress not acting when everybody knows what Congress has to do: it is difficult to get even the most devoted anti-immigration activists to talk seriously about deportations en masse. Every time we defer immigration enforcement, it shows the logic for why further enforcement should be deferred. That is, until Congress decides to enact the only clear policy solution to this — which always has been the only clear policy solution, and will continue to be the only clear policy solution.

What’s with this Pew poll? The significance of “eventually” in talking about a path to citizenship

Pew poll on support for citizenship.

Pew poll on support for citizenship.

Pew research is indispensable when it comes to understanding American public attitudes on immigration, and (in my estimation) Pew has the strongest scholarly reputation of any organization doing regular research on this topic. So, naturally, it will raise some eyebrows when Pew research puts support for a path to citizenship about 15 points lower than other polls have.

That’s the message being taken from this Pew poll released today — 43 percent support for a path to citizenship, as opposed to the typical 60 percent seen in polling, with 24 percent supporting a non-citizenship legalization (about 10-15 points higher than normal).

As per usual with Pew, this is a survey with a large sample size. Eyeballing it, it doesn’t strike me as an outlier in a statistical sense. Instead, it seems to differ in question wording from other polls in a significant way.

Other polls that have found high support for a path to citizenship describe it in the question wording as being an eventual path. For instance, this Hart Research Associates poll: “Only after registering for legal status, learning English, and paying taxes, illegal immigrants could work to citizenship over time.” That found 58 percent support.

Or this Quinnipiac poll. “Which comes closest to your view about illegal immigrants who are currently living in the United States? A) They should be allowed to stay in the United States and to eventually apply for US citizenship. B) They should be allowed to remain in the United States, but not be allowed to apply for U.S. citizenship. C) They should be required to leave the U.S.” That poll found 56 percent support for a path to citizenship, 10 percent for a non-citizenship legalization, and 30 percent for the “not allowed to stay” option.

What did the Pew poll ask? Looking at the toplines, it was a two-parter. First: “Which comes closer to your view about how to handle immigrants who are now living in the U.S. illegally?”, at which point respondents were given the options of “They should not be allowed to stay in the country legally” or “There should be a way for those who meet certain requirements to stay in the country legally.” Of people who said they should be allowed to stay, they then asked, “And do you think immigrants who are in the U.S. illegally and meet the requirements should: Be able to apply for U.S. citizenship, or Be able to apply for permanent residency, but not U.S. citizenship.”

This is a legitimate way to measure baseline support for a path to citizenship, but it obviously differs from the other questions in a significant way in not describing the path as “eventual” (or, in the case of the Hart poll, rigorous). Someone hearing the question could very well think they’re being asked if people who are in the U.S. illegally should be allowed to apply for citizenship right away.

There’s all sorts of other data suggesting Americans are uncomfortable with the idea that the currently unauthorized should “never” be able to become citizens. That Hart poll asks that question, emphasizing “never,” and finds support for an eventual path to citizenship to be 87 percent to 7 percent.

It’s an open question as to whether the “eventual” part of the path to citizenship proposals are getting through to the public. More than it shows a very different level of public support for a path to citizenship, this Pew poll suggests that successfully communicating how this path is eventual may have a big impact on public support for the bill, to the tune of around 15 percent.

If everybody supports a path to citizenship, can Congress plausibly support something else?

“Everybody” is an exaggeration, but less of one than it may appear.

This story is getting old. I can’t recall a poll where there wasn’t this kind of result for a path to citizenship. It’s the most popular position among basically all political subgroups (Democrats, Republicans, independents, the Tea Party).

There’s an interesting discussion (which I’ll probably write about later) about why — despite the fact that this opinion is equally enduring as the idea we need more enforcement — policy has continually enacted more enforcement while doing nothing about legalization.

For now, it’s relatively fascinating how, despite the fact that people pretty clearly support a path to citizenship, it’s completely plausible that the pivot point in Congress will be a member who support some other kind of provision. Perhaps not a legalization without citizenship — which draws relatively slim public support — but maybe something like the “no special path” framework being talked about in the House (which in my estimation wouldn’t solve many problems).

The fact that Republicans control the House is at first a rather clear reason why the compromise could end up to the right of public opinion. But when a plurality of Tea Partiers support this position, how does that work? People are probably fearing a 2007-style backlash, and what “public opinion” is to policymakers can often depend on who is mobilized. It reminds me of this recently released working paper, which offers evidence that state legislators overestimate how conservative their constituencies are in ways that are shockingly systematic.

“Silent majorities” often aren’t as reassuring to policymakers as loud minorities are threatening, and that has the capacity in this debate to produce a result that is rather perverse in terms of the policy preferences the public has made rather clear.

The incentives to compromise on immigration reform

Josh Marshall throws cold water on the idea of a fast immigration reform measure, noting that yesterday’s House Judiciary hearing showed substantial difference between Democrats and Republicans on the issue of legalizing the 11 million undocumented immigrants in the country.

The argument is:

It’s almost as if this whole conversation has been moving along without taking any cognizance of the fact that the same House Republican caucus is still the center of Republican power in Washington. … And Committee leaders made clear yesterday that at most they are on board with a plan that would allow currently undocumented immigrants a permanent residence status that would nonetheless prevent them from every becoming citizens. That’s a stance the immigration reformers won’t accept and one Democrats cannot accept since they need to deliver for the supporters who provided such a critical edge for them in 2012 and whose support they hope to nail down for years to come. … Democrats have overwhelming policy and political reasons for demanding real immigration reform. They have no interest in compromising. So how does this happen exactly without Boehner yet again carrying a bill with Democratic votes or a long, drawn out process — likely lasting through most or all of this year — to grind House Republicans down until enough of them finally agree.

I see this bill taking at least 5 months, and very possibly longer, to put together, but I disagree that Democrats have no reason to compromise. In fact, I could very well see some kind of compromise emerging where the DREAMers get citizenship but most others get permanent lawful status — or I could see the Senate version emerging as the measure that’s able to capture the 218th House vote. I could see this being loudly decried as inadequate by many Democrats, but I don’t see them trying to call the Republicans’ bluff and voting against it, because there is too much pressure to deliver something, now that this is being discussed. If the Republicans refuse to give a broad path to citizenship, then you can hammer Republicans about this among Latino voters until the issue can be revisited during a more friendly Congress. Either way, their permanent legalization is the biggest, first step toward citizenship (down the road — though that may take a rather long time).

For Republicans, on the other hand, that scenario provides the main reason to agree to a broader path to citizenship: If they scuttle a path to citizenship for all the otherwise lawful undocumented, then they hardly get rid of their issue with Latino voters and aren’t able to pursue the eventual “second chance” they’re looking for. In order to get what they want politically out of this legislation, leadership will have to convince their members to agree on some kind of broad path. But they may be able to push them only as far as the conditional path in the Senate version — which then is poised to emerge as the passable compromise.

Legalization and its forms emerge as a major tension in House hearings

The first panel of the House hearing today went relatively well, as far as the prospects for reaching consensus on an immigration reform is concerned. That is, if House Republicans are the major roadblock to a bill, and if John Boehner is willing to let go of the Hastert Rule per the elite Republican belief that there has to be movement on this issue, then there needs to be substantial enough support from the Republican rank-and-file for something to pass — and this hearing has allowed us to believe that such support may exist, or at least, that it’s not impossible. It could definitely be worse!

There was all sorts of agreement on enforcement and legal immigration measures, and no particularly sharp disagreements on legal immigration channels, though those must continue to take shape. There were some hopeful statements from Republicans on House Judiciary such as Bob Goodlatte, the chairman, and Raul Labrador, rumored to be working on a House bipartisan compromise bill.

But one thing that’s clear is that substantial division remains on the question of what to do with the 11 million undocumented already here — whether they should merely gain legal status, or have a path to citizenship offered to them. A telling exchange occurred between Rep. Blake Farenthold and Julian Castro, a panelist who is the mayor of San Antonio. Farenthold professed concern about how allowing a path to citizenship might create a moral hazard in encouraging more to come and creating the same problem again (see my last post on why there’s no evidence it would do this). Castro responded by saying, essentially, that if you’re going to have a permanent population in your country it makes no sense to close them off forever from the political community, because that would create an underclass to which political participation is never accessible, and would be pointlessly divisive. (Castro is correct from a policy perspective.)

If we’re all going to be resigned to having the 11 million undocumented immigrants stay — and we’re going to have to be, because the plain fact is that there’s no other way to deal with the problem — then the question becomes about what kind of status you allow them to have. Democrats, per what President Obama laid out in his speech last week, tend to want a path to citizenship that is rather straightforward for those who meet the conditions; Republicans on this panel seemed to be concerned about the (again, not actually existent) moral hazard surrounding such a path, and they seemed more comfortable with a conditional legal status short of citizenship.

So, what may end up being the middle ground on this is the kind of conditional path to citizenship laid out by the Senate gang of eight. This is not ideal — tying what happens to those already here to yet-unspecified standards of border security is foolish, since the fate of the current undocumented shouldn’t rest on conditions at the border which will never entirely be under the government’s control — but it may be enough to woo important Republican votes. It’s up to the Democrats to decide how insistent to get; they re right on the policy merits of a straightforward route to citizenship, but this may not be enough to get Congressional passage without compromise.