May 2015 Features

The Law and Politics of Immigration Reform

farm workers spraying artichokesBy Kathy Boccella

Not long after Sarah Bechdel ’10 graduated from Bryn Mawr, she took a job with a project that worked with Pennsylvania’s mostly immigrant migrant farmworkers. She was appalled at the conditions that she saw.

“A lot of them lived in really bad conditions and would tell us horror stories about their employers, but they were way too afraid to speak out or pursue any kind of legal action,” Bechdel recalls of her time with Philadelphia Legal Assistance and its statewide Pennsylvania Farm Worker project. Many of the workers she met, mostly from Mexico, were paid by the box for hours of back-breaking work picking apples or mushrooms. They often fell short of earning even the legal minimum wage.

Like many activists and scholars, Bechdel pinned her hopes for the fate of an estimated 12 million undocumented immigrants in the United States on action in Washington, D.C., where a reform-minded President Barack Obama has been at loggerheads with Congress over a comprehensive plan to tackle the problems. Despite the increasing volume of the national immigration debate in recent years, proposals for a sweeping immigration bill—which would offer some or all of those undocumented workers a path to citizenship while increasing border security—have remained bottled up in a divided Congress for nearly a decade. A bold and controversial move in late 2014 by Obama to sidestep Capitol Hill and prevent deportation for as many as five million immigrants was still blocked in the courts this winter.

“The longer the U.S. government ignores the problem, the more complicated and difficult that problem gets to solve,” says Bechdel, a double major in anthropology and Spanish at Bryn Mawr and now an economic justice advocate with the Southern Poverty Law Center in Montgomery, Alabama. “There are so many things we’ve let go for so long for many undocumented people in this country.”

It was not supposed to be this way. The recent history of U.S. immigration policy begins in the mid-2000s, when a Republican president, George W. Bush, proposed a sweeping plan that included a pathway to citizenship for the 12 million undocumented immigrants, an expanded guest worker program backed by the business lobby, and stricter border and workplace enforcement. That plan faltered in Congress, largely due to conservative objections whipped up by talk radio and grassroots politics. Obama promised voters in 2008 that he would work to break the gridlock—“I can guarantee that we will have, in the first year, an immigration bill that I strongly support,” he said then—but then put the issue on the back burner, only to watch GOP opposition harden.

“I think immigration is a hot button issue in the U.S. and really always has been,” says Leticia Saucedo ’84, professor at the University of California-Davis. “And so I think it was really difficult for the administration to deal with that and the Affordable Care Act and the financial meltdown and whatever problems were in front of it.”

Meanwhile, opposition to immigration reform in Congress—where Republicans had the ability to thwart Obama first by Senate filibuster and later by majorities in the House and, starting this January, the Senate—stiffened; when one GOP White House hopeful, Florida Sen. Marco Rubio, threw his support behind a package that included expanded citizenship options in 2013, not only did the measure go nowhere but his standing in Republican presidential polls dropped. With legislative gridlock in place, the Obama administration surprised advocates by actually increasing deportations, with some 438,421 undocumented immigrants forced to leave in 2013, double the rate of just one decade earlier. Some critics labeled Obama “the deporter-in-chief.”

Saucedo says the lack of congressional support for a radical overhaul of the system is not surprising. “Rather than sort of taking apart the immigration system and putting it back together in a way that makes sense for our future,” she says, “Congress has always been reactive. A crisis occurs, Congress responds.”

In 2012, with the lack of immigration action hurting Obama’s approval ratings with Latino voters in the midst of his re-election effort, the president used his executive authority to issue a directive removing the threat of deportation for an estimated 800,000 young people who came to America as children; the move also made it easier for them to get driver’s licenses and other papers. “What the administration did was look at the whole immigration system and try to figure out places in which the executive branch could interpret already existing law or change its interpretations to include more people in deferred-action status” for deportation, Saucedo explains.

At the time the president called it “a stopgap measure,” but in the fall of 2014, Obama went much farther with a second order that expanded similar protections to as many as five million additional undocumented immigrants, mostly the parents of children with full citizenship because they were born in the United States. Opponents of immigration reform, including the Texas attorney general, immediately sued, arguing that Obama had stepped well beyond his authority. In February a federal judge agreed, halting the move from taking effect.

Saucedo argues that the Obama administration was acting well within its rights to decide who gets deported and who does not. “I traced it as far back as 1917—where presidents have used their prosecutorial discretion to decide who remains in the country,” the California professor says. “Because the fact of the matter is that the way the system is set up, the deportation system cannot handle the number of people that would be in the deportation system,” referring to the 12 million already here. She believes there are considerable constitutional precedents that will support Obama’s case going forward.

Saucedo also notes several overlooked aspects of the new immigration policies announced by Obama, including a push for stepped-up deportation of people who committed violent felonies or other crimes, as well as anyone who entered America unlawfully after the order was signed. “It also ended the very controversial relationship that the Bush administration started, and the Obama administration continued, of cooperation with local authorities—and I think both sides are happy with that.”

But to activist Bechdel, the president’s record is problematic, especially with the 2014 order in legal limbo. “These executive actions have been great,” she says, “but it’s disappointing to see what’s happened recently in that the most recent ones in November have been blocked by a court order.” She’s also disappointed that the orders still cover fewer than half of the undocumented immigrants who are currently here. “Deferred action is a temporary status,” Bechdel says. “It’s kicking the can down the road again.”

The federal deadlock has put more focus on the states. In the early 2010s, a number of Mexican border and Southern states with Republican-led governments enacted restrictive measures aimed at detaining undocumented immigrants or making it more difficult for them to work. That includes Bechdel’s current home state of Alabama, which enacted harsh measures in 2011 aimed at driving undocumented immigrants from the state by requiring landlords, school officials, and others to check immigration status and giving police new arrest powers. But the Alabama effort collapsed; parts were declared unconstitutional as the state’s powerful agriculture industry struggled mightily to replace migrant workers.

“In Alabama there were people leaving their jobs and leaving the state, and there was a noticeable economic impact when they passed that law,” says Bechdel, who believes that the wave of Republican-led state immigrant crackdowns might now be over. Indeed, some states with a more liberal bent—such as California under Democratic Gov. Jerry Brown—are beginning to move in the other direction, making it easier for undocumented immigrants to obtain driver’s licenses or providing student legal services from state universities. A growing number of states are moving to offer undocumented students the same in-state tuition benefits as citizens.

“States are looking to provide in-state tuition to people with deferred-action status,” Saucedo says. “The move has a ripple effect across the country in terms of integrating students further into American life.”

And with the 2016 elections on the horizon, Saucedo expects to see some form of action from Congress—just not one that would include a pathway to U.S. citizenship to those who crossed the border illegally. “Congress has already been talking about dealing with immigration reform in a piecemeal fashion, rather than comprehensively,” says Saucedo, noting that there’s wide support for increasing border security under the Department of Homeland Security. “We’ll see a piece on enforcement … but not in a thoughtful, forward-looking way that deals with the immigration system.”

For Bechdel, there is frustration that even if the courts do uphold Obama’s 2014 executive order, the president’s initiatives won’t help many of the farm workers she assisted in Pennsylvania. She noted that neither of the measures created a special deportation exemption for farm workers. Some migrants who started families while they were in the United States would be allowed to stay, but many others would not.

“Many farm workers are single adult men who are traveling throughout the country looking for work,” she explains. “In many cases, those men are not going to see a benefit. Also, there’s a large number of farm workers who are here as guest workers. So they come in on specific visas for specific job opportunities. Those men are never going to see an opportunity for U.S. citizenship. They’re brought in and out to perform work and that’s it.”

Meanwhile, undocumented immigrants continue to pay into the American tax system, even as they fail to get back the benefits that citizens receive. Some congressional Republicans are upset that Obama’s executive orders—if upheld by the courts—would make it possible for some undocumented immigrants in the workforce to apply for the Earned Income Tax Credit, which benefits low-income earners.

“We talked with many undocumented workers who needed to apply for a tax ID number through the U.S. government, so if you don’t have a Social Security number, that’s the number you use to file taxes,” Bechdel says of her experience with migrant farm workers. “Those people cannot claim the Earned Income Tax Credit. Taxes are really, really difficult for undocumented people.”

Looking ahead, Bechdel believes there are other moves the federal government can make to remove the threat of deportation for more people. “The government does have some great programs; this isn’t an Obama thing,” she said. “There’s the U-visa, where if you’re a victim of crime in the U.S., it can qualify you for this visa that allows you to have a path to become a naturalized citizen. I think there are other ways the government can justly treat people and come up with other programs that can provide a path of people to naturalize. Obama’s executive action is not the only way.”

Saucedo is more upbeat about how history will judge the current president’s actions on immigration. “Some say this [the executive order] was part of the Obama administration’s attempt to get out from under the label ‘deporter-in-chief,’” she says. “I think he’s thinking about his legacy when he’s doing this, but he’s also doing the right thing. I think at some level he knew it was the right thing, but it was just a matter of when it was going to fit into his priorities.”

What’s more, Saucedo sees signs that youthful energy is turning the tide of public opinion. “There’s a sea change among young folks as far as their hope for seeing some form of immigration reform,” she says. “They are the ones actually fueling the movement for immigrants’ rights.”