Restoring the Rule of Law Through a Fair, Humane, and Workable
Immigration System
By Tom Jawetz
This report was published in Center for American Progress, www.americanprogress.org.
.Tom Jawetz
Introduction and summary
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 immigrants1 or live up to its ideals as a nation of
laws by enforcing the current immigration system. Presented with this choice, supporters 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.8 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.


This report is not intended to provide all the answers. Rather, it builds a framework for analysis within which additional publications will follow. In particular,
this report calls for a vision for immigration policymaking that includes, at a minimum, the following guiding principles and policy recommendations:


•        Build a generous and well-functioning legal immigration system that can be responsive to the nation’s changing needs. This would include realistic and
independent evidence-based avenues for immigration that allow families to stay together and businesses to get the workers they need, while enhancing all
workers’ rights to fair and increasing wages, safe working conditions, and the opportunity to thrive together. The rules of such a system would be designed
to recognize the fact that the only way to have an immigration system that works is to more closely align supply and demand, rather than force the system to
adhere to artificial caps, untethered from reality and revisited only once in a generation at best. Importantly, if immigration were successfully channeled
through a functioning regulatory system, enforcement resources could instead be dedicated to preventing individuals from entering the country outside of that
system and to appropriate enforcement actions necessary to maintain the integrity of that system and U.S. borders, which remain central to the very notion of
national sovereignty.
•        Establish a humane asylum and refugee system that honors the nation’s historic commitment to be a place of refuge, as well as ensures that those in
need of humanitarian protection receive fair and efficient adjudication of their claims without sacrificing due process.
•        Commit to proportionality, accountability, and due process in immigration enforcement. This would do away with the current one-size-fits-all approach,
in which banishment from the country is the only sanction on the table and opportunities for relief are few, and instead allow for a range of potential penalties
to fit the offense and the individual. Likewise, such a system would have real due process; be administered through independent immigration courts that
consider cases with the ultimate goal of rendering fair and just outcomes;9 and incorporate important aspects of the rule of law long found in the U.S.
criminal justice system, including the notion that sanctions should be subject to statutes of limitations.
•        Create a path to citizenship for undocumented immigrants and other individuals long residing in the country. This would allow people to come forward,
register with the government, pass a background check, and be put on a path to permanent residence and eventual citizenship. Building a functioning
immigration system, as described above, will go a long way toward ensuring that people no longer have to come into the country outside the law—or remain
outside the law—in the future. However, this will do nothing to address the 10.5 million people already here without status who have, on average, lived in
the United States for nearly 15 years. It will not help the more than 1 million individuals now protected by Deferred Action for Childhood Arrivals (DACA),
Temporary Protected Status (TPS), or Deferred Enforced Departure (DED) who have no path to permanent residence and are living in fear that their temporary
reprieve may soon be ripped away. If our collective goal is to create policy that upholds the rule of law in the U.S. immigration system—where we all live by
a fair and humane system of rules that is transparent, consistent, and aligned with everyday realities—there can be no question that the nation must provide
a path to permanent legal status for those already here. They are full and contributing members of U.S. communities—raising families, paying taxes, and
enriching society in myriad ways.


The goal of those who support and recognize the value of immigration and immigrants must be to build an immigration system in which the rules are clear;
there are legal, accessible pathways for people to enter into and remain in the United States; and punishments for violating the rules—when applicable—are
fair and just. Such a system would uphold the rule of law by honoring America’s long history as both a nation of immigrants and a nation of laws, and it would
be humane and functional. In short, it would be a system of which all Americans could be proud—and a system that all Americans could see the value of
defending and enforcing.


What does ‘rule of law’ mean?
As the term is popularly used, “rule of law” refers to a sense that the nation is governed by a set of laws that people understand, that work, that are
fundamentally fair, and that people believe can and should be followed. The idea that the United States should be ruled by a “government of laws and not of
men,” in John Adams’ formulation, lies at the heart of the nation’s constitutional tradition. This concept, which traces originally to Aristotle, was first popularly
called the rule of law by the 19th-century English law professor A.V. Dicey. As explained by more modern legal scholars, a system that adheres to the rule of
law must, at a minimum, be:
•        Prospective: Punishment or other legal consequences must follow from a properly and previously enacted law; ex post facto punishments for conduct
predating the law are forbidden.
•        Public: Laws are created through a regular public process, and the public knows what the laws are and can conform their conduct to them;
adjudication of alleged violations also are made in public, not completed before a special or partial tribunal.
•        General: No one is, by virtue of wealth or political position, above the law or subject to a different law.
•        Stable: Changes in law, particularly in the courts, develop over time by a system of precedent, not arbitrary departures.


Richer definitions of the rule of law additionally incorporate concepts pertaining to “fundamental rights, democracy, and/or criteria of justice or right.”
It is important to distinguish between the rule of law, which is a normative ideal that incorporates values such as fundamental fairness, equality, and
decency, and “law and order,” which is an enforcement-heavy vision of social control that is generally used as a racially coded dog whistle. As law
professor Michael C. Dorf puts it, when President Donald Trump calls himself “the law-and-order candidate,” what he really means is that he “will use the
law to impose order on ‘them’ (undocumented immigrants, African Americans protesting racially biased policing, Muslims) in order to protect ‘us’ (white
Americans).”15 That is the polar opposite of what this report is proposing when it discusses restoring the rule of law in the immigration system and
reclaiming the rule of law narrative from restrictionists who have misappropriated it to serve their anti-immigrant agenda.


As illustrated in the following subsections, the United States’ immigration system has long fallen far short of rule of law principles. During the Trump
administration in particular, policies have been adopted that violate the letter and spirit of the law, often without opportunity for public scrutiny or comment,
and frequently visiting serious legal consequences on immigrants as a result of conduct that long predated the reversal of course ushered in by the new
guard.


The Trump administration is undermining the rule of law by breaking the law
One primary goal of this report is to explore the ways in which failing to substantially reform the U.S. immigration system—and simply continuing to escalate
enforcement of that broken system—undermines the rule of law. But because restrictionists have long been motivated not by fidelity to the rule of law but
rather by the desire to severely restrict immigration into the country and maximize deportations, in working toward their goals, they frequently undermine the
rule of law by breaking the law. A few recent examples of such efforts from the Trump administration include:
•        Separating families: In June 2018, a federal court preliminarily ruled unconstitutional the administration’s separation of thousands of migrant children
from their parents at the border. Nothing in the law required the Trump administration to separate families—that was a deliberate policy choic
e.
The court described the government’s conduct as likely “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience” and
“so ‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.”18 Upon learning that the government failed to inform the
court and counsel for the plaintiffs that thousands of additional children may have been separated from their parents before the period covered by the court’s
previous orders, the court expanded the class of children covered in the suit. It also rejected the government’s argument that it would be too burdensome if
the court required the government to account for still more children forcibly separated.
•        Gutting asylum laws: In 2018, then-U.S. Attorney General Jeff Sessions directed immigration judges and the Board of Immigration Appeals to deny
asylum protections in nearly all cases involving persecution based on domestic violence or gang activity. In December, a federal judge permanently
enjoined this directive as an “arbitrary and capricious” violation of multiple immigration laws. Two months later, in defiance of clear statutory language
requiring that a person be allowed to apply for asylum “whether or not” the migrant arrives at “a designated port of arrival,” the Trump administration issued
an interim final rule and a presidential proclamation that together attempted to make asylum unavailable to anyone who entered between designated ports. A
separate district court promptly issued a restraining order to block this clearly illegal prohibition, and both the U.S. Court of Appeals for the 9th Circuit and the
U.S. Supreme Court refused to reinstate it on the grounds that the policy likely violates both substantive immigration law and the Administrative Procedure
Act. The union representing the nation’s asylum officers recently filed an amicus brief in support of litigation challenging yet another effort to illegally make
protections unavailable to asylum-seekers. The brief, which challenges the so-called Migrant Protection Protocols that have forced thousands of asylum-
seekers to wait for months in desperate and dangerous conditions in Mexico, calls the policy “fundamentally contrary to the moral fabric of our Nation” and a
“violation of international treaty and domestic legal obligations.” And as this report went to print, the administration was pursuing still another interim final
rule designed to effectively eviscerate the entire asylum system along the southwest border, once again in violation of clear congressional commands.
•        Ending Deferred Action for Childhood Arrivals: Every court that has ruled on whether the administration likely broke the law when it terminated DACA—
including two in the U.S. Court of Appeals system and three U.S. District Courts—has entered a preliminary injunction blocking the administration from ending
the initiative. These courts have ruled that the administration likely violated the Administrative Procedure Act by ending the initiative in an “arbitrary and
capricious” manner, at least in part because the administration failed to acknowledge or consider the great extent to which DACA recipients have come to
rely upon the continuation of these protections. Though multiple district and circuit courts have yet to rule on pending cases addressing the issues at stake
and, presently, no lower court split exists, the Supreme Court in June agreed to review and consolidate three lower court rulings.
•        Attacking so-called sanctuary cities: At least five federal courts have enjoined the Trump administration’s efforts to withhold federal law enforcement
grants from local jurisdictions that refuse to fall in line with the administration’s unlawful immigration enforcement practices or go beyond what the law
requires in the way of cooperation.
•        Ignoring the facts and law to end Temporary Protected Status: In October, a district court preliminarily enjoined the administration’s efforts to terminate
certain TPS designations that protect approximately 300,000 nationals of four countries. Recognizing the hardship that an illegal termination of status would
pose for these immigrants and their families, the court found that the U.S. Department of Homeland Security (DHS) likely violated the Administrative
Procedure Act—and may have violated the Immigration and Nationality Act as well—when it adopted a “substantial and consequential change in practice …
in order to implement and justify a pre-ordained result,” namely the deportation of those immigrants.


The immigration debate in this country is deeply distorted by the fact that the people who most consistently cloak themselves in rule of law rhetoric regularly
break the law themselves. Restoring the rule of law in the U.S. immigration system in the wake of Trump administration policies begins with ending these
lawless actions, but that must be just one step toward putting in place an immigration system that is fair and humane and that works as designed.


Today’s problems are long-standing
Large parts of America’s immigration system have long failed to embody any of the features of a fair, humane, and well-functioning system that responsibly
manages migration and upholds the rule of law. Incredibly, policymakers have not modified the legal pathways available to immigrate to the United States in
nearly 30 years. Going back even further, American policymakers have grappled with neither the realistic demand for immigrant labor nor the lived realities
of immigrants themselves. For decades, the nation has relied on immigrants to fill labor shortages, particularly in industries such as agriculture. But by
failing to create legal pathways for such immigrants to enter the country and have the opportunity to remain, policymakers—and society more generally—
have built unauthorized immigration and unauthorized employment into the system itself. As Richard Land, former president of the Southern Baptist
Convention’s Ethics and Religious Liberty Commission, aptly puts it, for decades “we’ve had two signs up at the border. … No trespassing and help wanted.”


Likewise, as Congress in the Immigration and Nationality Act of 1965 worked to promote equality and end the explicit discrimination of the national origins
quota system, it also laid the foundation for new inequities. Because per-country caps included in that law allocate no more than a certain number of visas
each year to nationals from any given country, U.S. citizens and lawful permanent residents are regularly forced to endure impossibly long waiting periods to
reunite with family members from countries such as China, Mexico, India, and the Philippines simply because of their place of birth.


In short, the immigration system has long failed to reflect the realistic needs of American society, American businesses, and American families. Predictably,
an extralegal immigration system has emerged to fill the holes—one that everyone in the United States relies upon or participates in, whether directly or
indirectly. Clearly, there is a tension between the laws on the books and reality on the ground.


Importantly, this tension has only increased over time, exacerbated by policymakers’ failure for years to enact a modernized and right-sized approach to
immigration that captures and amplifies its benefits. Policymakers have also failed to provide a path to permanent legal status and eventual citizenship for
the estimated 10.5 million people who are living in the country today without lawful status largely because the immigration system has been so dysfunctional
for so long. Congress and various administrations have repeatedly layered upon this broken system additional enforcement tools and resources that have
led to heightened arrests, detentions, and deportations, frequently of longtime residents and treasured members of families and communities.


Today’s immigration enforcement apparatus is overfunded. Congress in fiscal year 2018 appropriated 34 percent more for the immigration enforcement
bureaucracy—$24 billion—than it did for all other federal criminal law enforcement agencies combined, including the FBI, the Drug Enforcement
Administration, the Secret Service, the U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.36 This has developed in large
part as a reaction to major events, most notably the September 11 attacks that continue to hover over immigration policy debates.37 Perhaps relatedly,
overfunding and the often singular focus on enforcement are also attributable to policymakers—and the American public—underappreciating the fact that the
immigration system is broken not because the laws are insufficiently enforced, but because they cannot be fully enforced without doing serious damage to
the country itself.


Of course, discretion is an essential element in the administration and enforcement of any functioning legal system; exercises of discretion large and small
in the U.S. immigration system can be found throughout history. But faced with perpetual congressional inaction, previous administrations have, at times,
exercised their discretion in increasingly expansive ways in attempting to partially address the enormous shortcomings of the outdated immigration system.
The Obama administration’s efforts to shape policy through discretion began with a 2011 prosecutorial discretion guidance that in 2014 was replaced with
new guidance focused on people convicted of serious offenses and recent border crossers. In 2012, the Obama administration created the DACA initiative—
in part because of Congress’ failure to deal with an issue for which the American public had already expressed overwhelming support—and in 2014, it
attempted to expand DACA and simultaneously create the Deferred Action for Parents of Americans (DAPA) initiative. DACA and DAPA were designed to allow
certain nonenforcement-priority individuals to come forward and request temporary protection.


But discretion, though a lawful and essential part of any enforcement regime, has its limits. While it can, and at times has, ameliorated some of the harms that
flow from the United States’ broken immigration system, it cannot fix the system itself. Moreover, discretionary acts are, by their very nature, ephemeral,
subject to the whims of politicians and public opinion. Perhaps one of the clearest examples of this shortcoming, as well as of how the Trump administration
has broken from previous administrations of both parties when it comes to the use of discretion, is the executive order issued by President Trump just days
after taking office that renders every person who is undocumented or otherwise potentially deportable an equal and high priority for removal from the country.
Other examples include the decisions to systematically eliminate many prior policy-level exercises of discretion—most prominently DACA43 and the
protections for hundreds of thousands of longtime residents with TPS and Deferred Enforced Departure.


Moreover, it is important to acknowledge that some exercises of discretion are—inaccurately, but just the same—cast by some as nonenforcement of the
laws as written. For this reason, relying for years upon increasingly robust exercises of discretion to effectively save the broken immigration system from
itself has fed the anti-immigrant narrative that only maximum enforcement demonstrates respect for the rule of law. Opponents of DACA and DAPA held
multiple congressional hearings and filed lawsuits46 raising the highly implausible claim that both initiatives violated the constitutional duty of the president
to “take Care that the Laws be faithfully executed.” In the early days of the Trump administration, former White House Press Secretary Sean Spicer referred to
the elimination of prosecutorial discretion guidance as “tak[ing] the shackles off” ICE personnel, and then-Acting Director of ICE Thomas Homan, who is now
rumored to be President Trump’s pick to serve as a “border czar,” months later similarly praised Trump for taking “the handcuffs off law enforcement.”


For too long, we in the pro-immigrant community have allowed restrictionists to dictate the distorted terms of the debate. And today we are at risk of allowing
them to wrongly define us as supporting an open-border policy rather than a system of rules that is tailored to meet the needs and interests of the country and
that can realistically and humanely be followed and enforced. We have failed both to call out the fundamental flaws in their claims that they are honoring the
rule of law, as well as to state clearly that the rule of law can be restored in the immigration system only if policymakers build a well-functioning system that
reflects America’s traditions as a nation of laws and a nation of immigrants.51 By not engaging in the debate on these terms, and not aggressively and
justifiably reclaiming the rule of law narrative in the immigration debate, we have allowed the rule of law argument to be made exclusively by
restrictionists—Donald Trump, in particular—who are themselves largely responsible for the degradation of the rule of law in the immigration system today.


Through demands to maximally and cruelly enforce existing law and to further restrict opportunities for legal immigration into the country, restrictionists have
consistently blocked bipartisan and popular efforts to reform and fix the United States’ immigration laws. Gallup polling over the years has found that three-
fifths to two-thirds of Americans support allowing those in the country without status to become citizens.53 In effect, restrictionists have actually perpetuated
the current extralegal immigration system.54 Moreover, as their influence has hit a crescendo during the current administration, it has become clear that
their own policy prescriptions routinely violate the law, even as they claim to be upholding it, as well as common understandings of fairness and decency.
Such prescriptions include family separation and various iterations of a ban on the right to request asylum or to enter the United States from a majority-
Muslim country.


Understanding the extralegal immigration system
It is little secret that the immigration laws on the books do not work. Because of numerical limits set in place decades ago, there are unrealistically large and
long backlogs for most categories of immigrants to enter the United States. Currently, 3.7 million individuals are awaiting a family-based immigrant visa;
many of them already have been waiting 10 to 20 years and can expect to wait far longer before a visa number becomes available.56 To take an extreme—
but real—example, a U.S. citizen petitioning for an immigrant visa on behalf of their brother or sister in Mexico today can expect to wait upwards of 160 years
for a visa to become available.


Similar problems exist on the employment-based side. Industries across the United States employ millions of undocumented workers in jobs that are
traditionally considered low skill, and they frequently have challenges finding labor to fill positions and grow their businesses, particularly at a time of
historically low unemployment. Despite this reality, the current immigration system makes only 5,000 permanent visas available annually to these “other
workers.” It also provides limited to no opportunities—and inadequate protections, at best—for individuals who wish to enter the United States temporarily
for such work.


Even for those commonly referred to as higher-skilled workers, extensive and unevenly distributed waits for immigrant visas leave individuals with little
job mobility and great uncertainty for themselves and their family members. Because of the arbitrary per-country caps that limit overall immigration from any
single country in a given year, an Indian national currently applying for a green card from within the United States under an employment-based category
typically available to them can expect to wait an estimated 119 years before a green card becomes available. Earlier this month, the U.S. House of
Representatives passed, on a strongly bipartisan basis, H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, which would eliminate the per-
country cap for employment-based immigrant visas and raise the cap from 7 percent to 15 percent for family-based immigrant visas.


The problems with the United States’ outdated immigration system help explain why immigrants will, in the absence of the reforms described in this paper, no
doubt continue to enter the country outside of legal channels and remain outside those channels, as well as why millions of immigrants already in the country
today have lived and worked here without status for so long. Contrary to popular belief, there is no one “line” that a prospective immigrant can get in to wait
their turn for an immigrant visa. The vast majority of undocumented immigrants who are here now had no realistic way to come to the United States lawfully,
have no way to obtain lawful status from within the country, and have few, if any, defenses to deportation if they are apprehended. They are trapped in a
Kafkaesque system that simultaneously counts upon their contributions to the country’s shared prosperity and refuses to provide an opportunity for them to
do so within the confines of the law and that inconsistently and unpredictably threatens to turn their entire lives upside down and eject them from the country
in which they live, frequently to serve political ends.


To students of history, none of this is new. In its 1982 decision in Plyler v. Doe, the Supreme Court recognized the constitutional right of all children,
regardless of immigration status, to a free public education, observing that “the confluence of Government policies has resulted in ‘the existence of a large
number of employed illegal aliens … whose presence is tolerated, whose employment is perhaps even welcomed.’” Restrictions and extralegal
workarounds—which all too often have benefited only immigrants of European descent while further disadvantaging immigrants of color—are an important
part of the story of immigration in America. Just a few examples of such policies include:


•        Chinese exclusion: Starting in 1875, Congress began to construct the system of Chinese exclusion. Far from ending Chinese immigration into the United
States or somehow redirecting the economy’s demand for labor, however, the exclusion laws predictably led to the first wave of extralegal immigration.
Chinese migrants who had entered the United States prior to the laws’ enactment remained in the country, even though they were barred from citizenship,
and fostered subsequent rounds of extralegal migration: Tens of thousands of Chinese nationals continued to enter, meeting labor market needs through a
loophole that allowed previously arrived Chinese men to travel home and return with their sons and daughters.


•        The bracero program: From 1942 to 1964, the United States permitted roughly 5 million Mexican agricultural workers to enter as part of the bracero
. In
addition, the Immigration and Naturalization Service (INS) took steps during this period to permit growers in the southwest to retain many of their
undocumented workers by allowing them to simply touch one foot back over the Mexican border and reenter as braceros, or contract laborers—a
bureaucratic fiction at best. However, the INS also substantially increased efforts to crack down on perceived undocumented immigrants. This ramped-up
enforcement took the form of widescale raids on undocumented workers, as well as a series of enforcement actions under the name Operation Wetback,
which began in 1954 and saw more than a million people deported in slightly more than a year. Reviewing the evidence, Michael Clemens and his
colleagues at the Center for Global Development concluded last year that the combination of “new and ample legal migration pathways, paired with
incentives against unauthorized migration through enhanced enforcement,” resulted in the replacement of unauthorized migration with authorized migration.
But when the bracero program ended and the labor market demand did not, the absence of adequate legal channels for migrant workers to enter the country
led once more to a predictable increase in unauthorized migration and a decrease in enforcement.


•        The Texas Proviso: With the Immigration and Nationality Act of 1952, policymakers further entrenched the national origins quota system, which
privileged northern and western European immigrants while severely limiting southern and eastern Europeans, and effectively shutting out immigration from
most of Asia and Africa. Policymakers also attempted to create a system of penalties against anyone bringing undocumented immigrants into the United
States or otherwise harboring them, but in the final bill, lead sponsor Sen. Pat McCarran (D-NV) helped insert a provision known as the Texas Proviso,
making it clear that employing undocumented immigrants did not run afoul of the law. As scholars such as Daniel Tichenor have pointed out, this duality—of
staunch immigration restrictionists such as McCarran also working to keep the door open to undocumented migration—says a lot about the foundations of the
modern, or extralegal, immigration system.


Contemplating what the United States would look like without this extralegal immigration system—both the system that predictably attracts unauthorized
immigrants to enter and remain in the country as well as the network of policies and practices, formal and informal, that have long dealt with this reality,
often by looking the other way in the face of such conduct—makes it clear why the system has been necessary in the absence of a well-functioning legal
immigration system.


First, undocumented workers are fully integrated into the economic prosperity of the country. In 2016, the Center for American Progress published a study
finding that removing all undocumented workers from the workforce “would immediately reduce the nation’s GDP by 1.4 percent, and ultimately by 2.6
percent, and reduce cumulative GDP over 10 years by $4.7 trillion.” Some industries would see workforce reductions of nearly 20 percent, with long-run
annual gross domestic product losses in the tens of billions of dollars.


Immigrants, both documented and undocumented, are also breathing new life into rural communities around the country, some of which have been
experiencing population decline for more than two decades. A recent CAP study found that in nearly 4 in 5 rural places that experienced population decline
between 1990 and 2012–2016, immigrants helped ameliorate those losses. And in those rural places that experienced population growth over that same
period, immigrants were entirely responsible for the growth in more than 1 in 5 places. In these areas, immigrants are opening small businesses, providing
essential health care services, preventing school closures, and filling and creating jobs that drive the local economy. They are also contributing their foods,
music, cultures, and languages, and are increasingly becoming involved in local government.

Second, not only is the country’s present tied to immigrants, but so is its future. Most immigrants come to the United States during their prime working and
reproductive years. And as more Baby Boomers retire in the years ahead, immigrants will not only disproportionately work as their doctors, nurses, and
home health aides, but immigrants and their children also will do the lion’s share of the work in filling the enormous holes in the workforce. According to a
recent study by the National Academies of Sciences, Engineering, and Medicine, immigrants and their children will have accounted for virtually all of the
growth in the U.S. working-age population during the current decade; without immigrants and their children, this age group would decrease by more than 7
million people in the coming decade. The contributions of foreign-born workers through payroll taxes are also shoring up the country’s social safety net for
years to come and helping ensure that the nation can honor the commitment it made to older Americans now turning to those programs for support.

The losses to the country in the absence of this extralegal immigration system would extend beyond these economic impacts. As law professor Hiroshi
Motomura observes in his book Immigration Outside the Law, the “broad, if controversial, acquiescence in unauthorized migration” may be principally
attributable to the important role that undocumented immigrants play in the U.S. workforce, but “over time they make lives, families, and communities.”
According to Motomura, the fact that America has long had a de facto “national policy of acquiescence means that unauthorized migrants come to the United
States as part of a tacit arrangement that is mutually beneficial.” But while mutually beneficial in many ways, living outside the law at the mercy of the
durability of a tacit—not formal—arrangement carries significant risks for the individual and society at large. Americans must not be satisfied with a decrepit
legal system that is only kept from doing maximum harm to their country through the broad use of enforcement discretion and the general agreement to
largely look the other way.

Continued Next Issue


Tom Jawetz is vice president for Immigration Policy at the Center for American Progress.
Overview: Policymakers must
break free of the false
dichotomy of America as
either a nation of immigrants
or a nation of laws, and
advance an immigration
system that is fair, humane,
and actually works.
Getty/Mario Tama
New U.S. citizens gather at a naturalization ceremony, March
2018.