Juliette Kayyem is a former assistant secretary at the Department of Homeland Security and faculty chair of the homeland security program at Harvard University’s Kennedy School of Government.
The Democratic debates last week revealed many things, but few revelations told us as much about the state of the party’s thinking than a brief back-and-forth between the two Texans in the race: Julián Castro and Beto O’Rourke.
Early on in the first debate, Castro, the former housing and urban development secretary, challenged “every single candidate on this stage to support the repeal of Section 1325.” That section of the federal criminal code makes “improper entry” — attempting to cross into the United States in between established entry stations or in order to avoid inspection — a criminal misdemeanor, punishable by a fine and/or up to six months in jail.
Castro pushed O’Rourke, a former congressman, to support repeal and instead make unlawful entry a civil violation, mostly to stop the government’s controversial separation of families. But O’Rourke declined, suggesting that it would be unwise to remove all criminal disincentives to illegal entry. On the second night of the debate, under questioning from a moderator, eight out of 10 candidates raised their hands to support repeal.
Repeal is an understandable reaction to President Trump and is quickly becoming party boilerplate. But that path is not a good one for the party or the country.
Democrats may be forgiven for spending most of their time debating how best to dismantle Trump’s harsh and inhumane policies, especially as they relate to children and families. It is a sentiment that animated the “abolish ICE” movement last year, as though by getting rid of the agency responsible for interior enforcement and deportation, the heart-wrenching aspects of a power that sometimes needs to be utilized will just go away.
The “repeal 1325” movement comes from a similar vein: that if we can reimagine immigration as a mere civil violation, then the difficult choices about who should stay and who should go will disappear.
But little of what is being done now by the Trump administration can be laid at the door of Section 1325. Not the interior enforcement efforts that have separated families; not the “dreamers” waiting in limbo; not the wall; not the changes to asylum law; not the conditions of deprivation that children are suffering under this administration.
Castro and others argue that Section 1325 is what is giving the government grounds to separate families. This isn’t true. The administration began by separating families under 1325 a year ago, but it now defends its separations as a way to protect kids . Ironic, yes, but also proof that repealing 1325 won’t stop an administration such as Trump’s from breaking up families. It also means that even if 1325 remains on the books, a future president will be free to end family separation.
The 1325 debate, then, allows Democrats to avoid what can’t be avoided: that a nation based on laws must have deportation, enforcement and removal standards to protect its borders. It is too easy to say Trump is ruthless in this regard, though he is. But regardless of whether repeal of 1325 is good or bad politics for the party, the reality is that the next president will need to govern the United States. And that requires laws that allow a commander in chief to protect the borders, deport individuals and keep some people out.
Democratic candidates give enforcement lip service, but a party agenda that actually embraced a rigorous, effective and even humane enforcement effort would include a criminal delineation between those who come to this country through legal means and those who do not. Why? Because whether the law’s existence changes an immigrant’s behavior is secondary to a nation’s interest in defining a baseline of desired conduct — a lawful immigration, including for asylum seekers — and by deeming a failure to abide by it as criminal behavior.
Dismantling Trump’s horrific policies is an easy “day one” agenda. But Democrats ought to be constructing their own affirmative-enforcement agenda. This should include: reestablishing Obama-era deportation priorities that focused on immigrants who were a threat to their communities; changes to chain migration, which has become too permissive; aggressive enforcement of e-verify to penalize employers who hire unscrupulously; and a focus on dismantling large employers, such as the Trump family’s far-flung properties, that take advantage of undocumented workers.
If Democrats win in 2020, they will inherit an immigration apparatus that needs a complete overhaul to align it with both our enforcement needs and our values. A debate about Section 1325 will not make deportations and all the other challenging policies that we would like to pretend are unnecessary go away. Let’s stop pretending it will.