As we argue about the horrifying humanitarian disaster at the southern border, a fundamental question is hovering in the background: Do we want to make it harder for desperate people to legally secure refuge in the United States, or easier for them to legally do so?
President Trump’s answer to this question is: Make it harder by just about any means necessary, no matter how much it shocks the conscience.
The spiritually sickening photo of a father and daughter drowned in the Rio Grande has crystallized the long-term moral and political debate that this humanitarian crisis demands. Trump is now blaming Democrats for the drowning, claiming they won’t help reduce the incentives spurring such migrants.
Democrats, by contrast, blame the deaths on Trump’s effort to make it harder for migrants to apply for asylum, which is forcing greater risks. They have pilloried Trump over his horribly cruel and inhumane treatment of migrants, while calling for other reforms that would ease the crisis.
Now House Democrats are set to roll out a major new proposal on the asylum crisis that will constitute a big down payment on the longer-term argument Democrats are making.
The new proposal from Democrats
The Northern Triangle and Border Stabilization Act — to be introduced by Rep. Zoe Lofgren of California and other senior Democrats — comes as Trump and Democrats are battling over $4.5 billion in border aid. Democrats want to channel the money to humanitarian ends. Trump is chafing at such restrictions.
But this short-term battle, while enormously important, is only the beginning of a much bigger argument.
The proposal has numerous core elements:
- It codifies a boost in humanitarian standards, requiring that children initially detained while awaiting transfer to refugee status get recreation time, adequate supplies and professional child welfare services.
- It creates additional avenues for migrants to apply from the region for refugee status in the U.S. and other Latin American countries, to discourage the dangerous trek.
- It makes large investments in the immigration court system to speed up backlogs, and to increase legal assistance for migrants.
- It dramatically expands programs that support and track asylum-seeking families — many of whom get released — while they await hearings.
- It makes large investments in alleviating the root causes of migrations from Central America — aid that Trump has moved to cut.
- It calls for increased diplomatic efforts to reach regionally negotiated settlements that might induce other countries to take in more refugees and migrants, which could also include financial aid.
The bill, Lofgren tells me, adopts a “humanitarian and regional approach to address the root causes of forced migration in Central America before it reaches our border.” For a full treatment of the diagnosis underlying this approach, see this Center for American Progress report.
A higher cap on refugees from Central America
One interesting provision would change the law to raise the number of refugees taken in from Central American countries to 100,000 per year, separate and apart from the refugees we take in from elsewhere — which Trump has dramatically cut.
This can be applied for from afar, and Democratic aides tell me the idea here is that, if you create new in-region ways to apply for refugee status while raising the numbers accepted, it minimizes the incentive to trek to the border.
Thus, this new proposal constitutes a serious statement of values. Many of these people have a legitimate claim to attempt to gain refugee or asylum status, and more pathways should be created to do so in a manner that’s legal and well managed, and doesn’t overwhelm the border or lead to terribly inhumane outcomes.
All this reaffirms our commitment to the human rights ideal that all people fleeing terrible and unlivable conditions deserve the right to appeal for refuge in places that aren’t in civil collapse, and to get a fair hearing.
The core dispute
Trump’s argument is that many of these migrants do not have a legitimate claim to appeal for refuge and protection, and that we are not obliged to facilitate a fair hearing. He argues that they are only coming because they know they will be released and can disappear pending hearings.
So Trump has tried in multiple ways to make it harder to apply for or succeed in getting asylum, has exercised unspeakable cruelties to dissuade them from trying, and is moving to ensure that as many as possible wait outside the country in Mexico. He also wants changes to the law that would allow for families to be detained together.
The best statistics available undercut Trump’s argument. Large majorities of asylum-seeking families actually do attend their hearings, and even larger ones do so when they have lawyers.
Regardless, the emerging Democratic argument forthrightly treats the need to release many families into the interior as both manageable and not necessarily a bad thing. Increased investments in legal services make it more likely they’ll succeed in getting asylum — this, again, is a good outcome if they qualify — and thus more likely to show up for hearings.
And it expands the Family Case Management System (see this Niskanen Center defense of the program) that Trump canceled, which makes it more manageable to track families.
It’s true that many will not end up qualifying for asylum status. But, if we make all of the above reforms, the thinking goes, it becomes more justifiable to remove those who do not qualify, since they will be getting real due process.
That removal is certainly a policy and law enforcement challenge. But that mere fact doesn’t justify throwing new hurdles in the way of those who have a legitimate claim to having their appeals heard.
The emerging Democratic Party ethos
To be clear, this approach does not involve “decriminalization of migration.” At the Democratic debate, Julián Castro and Beto O’Rourke sparred over Castro’s proposal to stop treating illegal border crossings as a federal crime. This would not mean people aren’t subject to removal after trial — it would still be a civil offense to be in the country without documentation — just that they can’t be detained while awaiting trial. But it’s a major change.
This new border proposal isn’t that. It’s premised on an acceptance of allowing asylum-seeking families to get released, but it only concerns them and not all undocumented immigrants, on the theory that they can be tracked and managed.
The idea of “decriminalizing migration” will be heavily litigated in the primaries. But taken all together, you’re seeing the formation of a party ethos that sees immigration largely as something that should be made easier to do in a legal, orderly way, and not harder — that is, not as something that’s frightening or criminal, but rather as something that is largely manageable through humane, reality-based policy-making and international engagement, and is ultimately a force for good.