Restoring the Rule of Law Through a Fair, Humane, and Workable Immigration System

Publication date: 
July 2019
The Center for American Progress logo, which features their name on one line above a triangular portion of the American flag.

The immigration debate in America today is nearly as broken as the country’s immigration system itself. For too many years, the conversation has been predicated on a false dichotomy that says America can either honor its history and traditions as a nation of immigrants or live up to its ideals as a nation of laws by enforcing the current immigration system. Presented with this choice,3supporters of immigration—people who recognize the value that immigrants bring to American society, its culture, and its economy, as well as the important role that immigrants play in the nation’s continued prosperity—have traditionally seized the mantle of defending America as a nation of immigrants. By doing this, however, rather than challenging the dichotomy itself, supporters have ceded powerful rhetorical ground to immigration restrictionists, who are happy to masquerade as the sole defenders of America as a nation of laws. The fundamental problem with this debate is that America is, and has always been, both a nation of immigrants and a nation of laws. Debates over a liberal immigration policy actually predate the start of the nation itself; they infused the drafting of the U.S. Constitution, America’s founding document.

Indeed, it is precisely because these two visions of the country are intertwined that America cannot be a nation of laws if those laws are antithetical to its history and ideals as a nation of immigrants. Put another way, the U.S. immigration system can, and must, recognize both the need for movement and the need for defined borders; it must have clear guidelines but also clear guardrails; and it must live up to the best of the nation’s past while working for its present and future.

This report sets out a framework for immigration policymaking that brings together the two visions of America, with the goal of building a fair, humane, and well-functioning immigration system in which the rule of law is restored. Additionally, it makes the case for why immigration proponents can and should reclaim the rule of law narrative frame from immigration restrictionists who frequently misappropriate the term to drive law and order policies that demonize immigrant communities and communities of color and only worsen the dysfunctionality and cruelty of the current system.

The report begins by laying out what the rule of law is, how it has been distorted by opponents of immigration, and the degree to which the current immigration system makes a mockery of American history and ideals—of an America that is both a nation of laws and a nation of immigrants. The report then outlines the emergence over a period of years of the extralegal immigration system that exists today. Next, it illustrates that under this broken system, immigration policy has fluctuated between two poles: on the one hand, relying increasingly upon administrative discretion alone to save the system from itself, and on the other, relying on maximum enforcement of “the laws on the books without apology,” as former U.S. Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan said.

The inadequacies of the former, and the abject cruelty of the latter, have contributed to a growing sense among some policymakers, as well as many in the pro-immigrant advocacy community, that the entire enforcement apparatus must be unwound. Certainly, enforcement reforms are necessary, as the following sections of this report explain. But the move to reject enforcement entirely—even in theory—only fuels louder calls for maximum enforcement, which then strengthen calls for abolition, ad infinitum. It is time to break this cycle of extremes and build an immigration system that is workable and humane and that the public broadly believes can—and should—be enforced through rules that are fair and just.

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