New York Times (Op-ed)
By Gordon Hanson
September 12, 2016
In June when the Supreme Court failed to allow President Obama’s executive orders on immigration to stand, it seemed like a fatal blow to his ability to reform immigration enforcement. Dig a bit deeper, however, and one sees that the powers of the executive branch to shape immigration policy are very much alive.
The Supreme Court prevented Obama from allowing undocumented immigrants — in this case those who have American-born children — to work legally in the United States. Because the president was seeking the authority to change the legal status of an entire class of individuals — something that Congress is supposed to control — it is unsurprising that the courts objected.
Yet, there are many cases in which presidents have unilaterally changed immigration policy. Consider one lesser known measure. Until around 2010, the vast majority of those apprehended trying to cross the U.S.-Mexico border without authorization were subject to “voluntary removal,” the much-maligned practice also known as catch-and-release under which the person apprehended is transported out of the United States with no further legal repercussion. The Border Patrol has since phased out this practice and largely replaced it with “expedited removal,” which involves a formal writ of deportation that impedes a person from obtaining a legal entry visa for five years or more. This change in tactic might seem like a bit of bureaucratic arcana but it has had real impact on the lives of migrants and on migration patterns. Previously, many would-be migrants who had applied for a green card would enter the United States illegally to live and work while they waited out the half decade or more it takes to clear the queue for a permanent residence visa. For these individuals, being an undocumented immigrant was just one part of the migration life cycle. By raising the legal stakes of being apprehended, the switch from voluntary to expedited removal has made prospective legal immigrants wary about entering the country through any means other than legal channels.
There are many further actions a future president could take without congressional authorization that would directly or indirectly raise barriers to immigration. These include conducting more surprise raids of farms and factories where undocumented migrants are known to work, more aggressively pursuing fines on employers found to have hired undocumented immigrants, engineering longer delays in obtaining a green card, and the list goes on. Each of these actions would have the end result of reducing the number of immigrants in the United States.
But research I conducted with Antonio Spilimbergo more than a decade ago found that after sustained growth in labor demand from construction, agriculture, food processing and other sectors that hire undocumented workers in large numbers the Border Patrol would often lower the intensity of its enforcement efforts. However much we may want secure borders, we also want the goods and services that undocumented workers produce.
The more valuable these goods and services become, the more willing we may be to let an administration ease border security. In the end, it seems, we get exactly the immigration policies that we want.
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