Taming Immigration
David A. Martin
University of Virginia School of Law, dmartin@law.virginia.edu
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Migration has always been a feature of human existence. Today it is a hot political topic—the source of much benefit to receiving nations and to the migrants themselves but also a chronic source of tension and conflict. I will speak today about the acute need for taming immigration and about ways to reach that goal. And I express my thanks to the Georgia State University College of Law and to those who established the Henry J. Miller Distinguished Lecture Series for this opportunity.
I. Setting the Stage
First, some preliminaries: why "taming"? The title of my Lecture has evoked disparate responses from people who have heard a preview. Some worried that this notion means radical cutbacks or harsh enforcement measures. I should talk instead, they suggested, about protecting immigrants or expanding immigration. Others thought that mere taming is either too weak or insufficiently ambitious in a time when control systems have suffered major breakdowns.
To unpack this contrast, let's start by examining what people might mean, in light of recent history, when they consider the concept of untamed migration. In 2015, the notion probably would have conjured images of flimsy rafts on a stormy sea between Turkey and nearby Greek islands—Syrians who had fled a vicious civil war, now exiting Turkey in huge numbers and trying to reach Greece as the gateway to
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asylum in Europe.1 The voyage was relatively short but quite hazardous. Many died. You probably remember a photo of a drowned child named Alan Kurdi, facedown on the Turkish sand—graphic, painful, heartbreaking.
Our hemisphere produces similar scenes of untamed migration. Southern Mexico has seen migrant caravans—hundreds of people together, many on foot, heading eventually for the U.S. border. The travelers were overwhelmingly from Guatemala, Honduras, and El Salvador. Their determined movement provoked heated comments about "invasion" from President Trump during the congressional election season of 2018.2
Neither the Syrians nor the Central Americans had visas. To call their migration untamed is not necessarily to disparage the reasons these people migrated, whether or not they ultimately have a basis for permanent relocation. Instead the label recognizes dangers to the participants, as well as potential alarm and backlash from the citizens of the receiving state, because of the high volume and the unruly arrival, without advance permission.
Now to shift the focus. What about the idea of taming immigration? At one pole might be the scenes of crying children from Guatemala or Honduras in crude rooms of concrete and steel and chain-link fencing in mid-2018. During those months, such children, even toddlers, were routinely separated from their families and detained by U. S. authorities while the parents were criminally prosecuted.3 The practice was expressly intended by several officials in the Trump Administration to assert control by deterring further migration of families seeking
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asylum.4 That policy evoked an overwhelmingly negative public reaction. President Trump—uncharacteristically—backtracked, rescinding the separation policy.5 But inexcusably casual government record-keeping hindered reunification of families.
German Chancellor Angela Merkel implemented, in August 2015, a sharply different notion of taming from that of President Trump in response to the perilous maritime flow of Syrians to Greece. Just a few days after the Alan Kurdi photo appeared on front pages around the world,6 she directed that refugees would be accepted in Germany without regard to the tight constraints of the Dublin Regulation,7 and she urged other European Union (EU) countries to open their doors. At first this courageous humanitarian stand drew praise and seemed to go well.8 German citizens staged public rallies in support, and Merkel received warm welcomes when she visited refugee hostels.
But that public reaction did not endure. The numbers were huge, a million arrivals in one year to Germany alone, and insufficient thought was given to how the people landing in Greece would actually reach Germany or other potential asylum countries.9 For several weeks, the arrivals simply started walking north, producing a different kind of dramatic photo—enormous columns of pedestrians trudging across open fields in Slovenia or clogging superhighways in Hungary.10
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Moreover, most other European countries resisted Merkel's initiative, and many actively blockaded the refugees. Viktor Orban, the authoritarian prime minister of Hungary, strung razor wire along his country's border.11 And—of great significance to the argument for why taming is necessary—Orban has relentlessly used the issue of uncontrolled migration to expand his party's voting strength and weaken Hungary's checks and balances. He does so in order to create what he has proudly labelled "illiberal democracy."12 Keep this in mind. Orban's skillful playing of immigration backlash has proved a model for other would-be autocrats.13
The backlash also mushroomed in Germany. Six months after Merkel's policy announcement, adverse outcomes in local elections, combined with criticism from EU members, convinced the Chancellor that the policy could not be sustained.14 The EU negotiated a new agreement with Turkey in March 2016. It provided essentially for Turkish efforts to stop the outbound boat flow, assurances of safe conditions for Syrians in Turkish refugee camps, and EU aid and other concessions to Turkey.15 But even after the flow was contained, Merkel lost political ground. Far-right parties won a place in the
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Bundestag for the first time in modern Germany.16 Poland, Italy, and Austria also brought anti-immigrant parties to power.17
II. What Is at Stake
These are the stakes—now as never before. We used to worry that polarization and backlash against untamed migration would lead to bad immigration policy. But today, ineffectiveness in immigration policy threatens much wider consequences. Extremist parties regularly find in immigration-control failures their richest opportunities to sow division, win power, and infuse a wide range of authoritarian features into what were once stalwart democracies.18 Regrettably—remarkably—the United States is also vulnerable. Our democracy is more fragile than most would have thought.19
To preserve the political space for reasonably open immigration policy, and more broadly to contain and reverse a global wave of authoritarianism, we do not need deep cuts in legal migration or harsh treatment of migrants. But we do need restoration of the rule of law—in reality and in shared public perception. We need a revitalization of regular migration following proper screening. We need resolute but proportional enforcement. We need taming, not hobbling—reassurance, not overreaction.
Sometimes it looks as though we are divided between those on the right who chant "build the wall," "send them back," or "no amnesty" and factions on the left who want to decriminalize clandestine entry or abolish ICE (Immigration and Customs Enforcement, the agency with primary responsibility for interior enforcement and detention).
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Political bargaining can barely get off the ground because on both sides the loudest voices are from self-appointed purity police, who pounce on the slightest indications of compromise.20 Purists from both sides torpedoed promising deals in 2017 that could have legislated a full legal status for Dreamers in return for modest new enforcement measures.21
III. Paths Toward Solutions
A. The Groundwork
We need to find ways to sideline or ignore the purity police. This won't be easy, but there is definitely ground to build on. Let me paint a more nuanced picture of the current attitudinal landscape. That panorama can help us design reforms that might someday succeed.
In my judgment, the vast majority of Americans are in neither of those polarized camps. They pay attention to immigration issues episodically, and how they react at any given time depends on the
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incident that happens to spark the latest headlines. Most Americans—though not all—share genuine pride in our heritage as a nation of immigrants and want to see that continue. But this welcoming impulse coexists, for most of us, with a concern about control, a worry that immigration could get out of hand, either through high numbers who enter or stay illegally or through lax screening in an era of significant threats—from terrorism, for example, or contagious disease. To be clear, this impulse to control does not demand zero immigration or even sharp cuts. It can coexist with relatively high levels of immigration, as long as the flow is seen as subject to deliberate decisions by the polity.22
Here's the main takeaway: Building a sustainable, workable immigration management system has to win the support of most of this large and somewhat conflicted constituency in the middle. To do so, we have to serve both the impulse to welcome and the impulse to control—that is, to honor our identity as a nation of immigrants while also defending our proud commitment to the rule of law.
My many decades of work in this field lead me to this conclusion: The most effective way to preserve that balance is not to cut overall numbers of lawful admissions, but to get a solid handle on reducing unauthorized migration.23 There are both good ways and bad ways to get there.
B. Background Conditions: A Look at the Migration Data
If we take a step away from the slogans and purity rituals, the objective conditions today, in late 2019, for achieving reform are actually pretty favorable. The overall flow of unlawful migration to the United States has been greatly reduced as compared to a decade ago, and the number of...
