Politico explained this morning how senators reached a compromise that will likely allow comprehensive immigration reform to pass the Senate with a wide bipartisan majority.
The basic outline of the deal is this: Democrats agreed to spend as much money on border security as Republicans wanted (some $30 billion over 10 years) so long as Republicans agreed that there wouldn’t be consequences if the security doesn’t work.
It’s not as dumb a deal as it sounds like.
This approach substitutes for one that many Senate Republicans had previously been demanding in exchange for supporting the immigration bill: A “hard trigger” that only activated the path to citizenship for previously-unauthorised immigrants once border security was apprehending 90% of people trying to cross the border illegally.
The hard trigger was the cornerstone of an amendment offered by Sen. John Cornyn (R-Tex.) but there were three uncertainty problems that made it unacceptable to Democrats.
- The “known apprehension” measure is somewhat arbitrary, because it only counts people who leave evidence that they crossed the border, and a lot of people cross the border without the Border Patrol ever knowing they were there. (That’s how they avoid apprehension.) So, better border surveillance might cause the known apprehension rate to worsen, even if illegal crossings are getting less common.
- A future Republican administration not wanting to activate the path to citizenship could tinker with the known apprehension calculation to ensure that the test wouldn’t be met.
- We don’t know how well added border security will work. Even if the apprehension measure were accurate and ungameable, we might fail to meet the test, and the path to citizenship would go untriggered—the point of the trigger, in the eyes of Republicans, but a problem for Democrats.
The new deal is much better for Democrats because it only has input measures, not output measures. They don’t have to worry about failing to trigger the path to citizenship. All they had to do was agree to some spending they view as wasteful.
But while Democrats have won here, it’s not clear to me that Republicans have given up much. They don’t have their output measure anymore, but for reasons (1) and (2), that measure was never that valuable to begin with. In fact, they should have had a fear that mirrored Democrats’: a future Democratic administration, eager to trigger the path to citizenship, could have gamed the measure to ensure it was met.
And this deal gets Republicans way more in added border security spending than they would have gotten under Cornyn’s amendment. If they think security measures are likely to work, they should be pleased about that, even if there isn’t a consequence for failure.
It’s also not clear how politically viable the idea of a “hard trigger” ever was. Let’s say Cornyn’s amendment had been adopted, immigration reform passed, and 10 years from now the apprehension rate is below 90%. There would be well over 10 million “Registered Provisional Immigrants” with legal rights to stay in the country and no way to become citizens.
That wouldn’t be a stable equilibrium. Unlike unauthorised immigrants, RPIs would have no reason to fear engaging in the political process and demanding the unlocking of a citizenship path. Elites on both sides of the aisle are, for good reasons, wary of creating a class of citizens who get to stay here indefinitely but never fully integrate into society because they can’t become citizens.
That is, once you tell today’s unauthorised immigrants that they can stay, it’s inevitable that sooner or later you’re going to have to make them citizens. If you hope to stop future unauthorised immigration, you’re better off taking border security spending now than a promise that they won’t get citizenship until the border is fixed.
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