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If Joe Biden effectuated his immigration policy without due process, why can't Donald Trump do the same with his?
That's the obvious question raised by Joe Biden's effortlessly permitting millions of people to enter the country illegally and Donald Trump's having to go through extensive exertions to remove (or keep removed) one illegal immigrant, Kilmar Abrego Garcia.
Abrego Garcia shouldn't have been deported to El Salvador, but the point still stands — illegal immigrants can be imported by the millions, with nothing more than a notice to appear and a bus ticket to their preferred destination, while there's a resource-heavy, time-consuming process to attempt to remove them by the thousands.
This disparity in due process — none of it coming in, a burdensome amount of it going out — inherently favors illegal immigration.
As it happens, there's a relatively easy way out of this box, although it's not what the administration is trying to do now.
The way to effect deportations without due process is not to invoke a dubious wartime power, make any number of other dubious legal claims, and perhaps ultimately defy the Supreme Court all toward the goal of . . . deporting several hundred members of Tren de Aragua with some other random illegal immigrants mixed in. Even if this worked out brilliantly — and it won't — the numbers involved are a fraction of a drop in the bucket.
The way to get people out without due process is the same way they come in without due process — of their own volition.
People choose to come to the United States illegally when they believe that the dangers are worth it because they stand a very good chance of getting in and staying. As we've seen the last several months, if they think the balance has changed, they make a different calculation; the risks aren't worth it if they are going to have to come right back home again.
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Under Biden, with a permissive incentive structure, illegal immigration surged. Under Trump, with a restrictive incentive structure, illegal immigration has dried up.
We need to replicate this switch within the United States. Illegal immigrants stay in the United States because they can work and are unlikely to be deported. If the equation changes, their decisions will change. The goal should be to create an impetus for "self-deportation," or going home without being forced to by our government.
Self-deportation got a bad name during Mitt Romney's campaign in 2012, when it was portrayed as a hateful and mockable notion. The politics are different now, and self-deportation should be considered preferable for everyone involved compared with ICE officers' picking up illegal immigrants on the street and sending them to detention facilities.
All laws, by the way, have a strong element of self-enforcement — you might be tempted not to pay your taxes, but the possibility of getting caught and dealing with all the downsides keeps most people from doing it.
The only way to achieve true mass departures is to target the jobs magnet in the United States. The vast majority of illegal immigrants aren't gangbangers here to prey on civilians, or victims fleeing political persecution; they are people who've come here to work.
The game-changer would be an E-Verify system that requires businesses to confirm the validity of a new employee's Social Security number with the Social Security Administration.
Employers hate the idea of this program exactly because it would make hiring illegal labor much more difficult and raise the cost of doing business. But why, in the current context, should this be an obstacle? With his ill-considered tariffs, Trump is disrupting every business in America that is dependent on trade, almost all of which have done nothing wrong.
In contrast, knowingly hiring and employing illegal immigrants is unlawful. That this happens on a gigantic scale is mass lawlessness that matches the mass lawlessness at the border; in fact, one would not be happening without the other.
The administration should be seeking to make an example of business offenders to convince every employer in America, large or small, to think twice before hiring illegal immigrants.
The current arrangement is that employers have to fill out a Form I-9 documenting an alien's authorization to work in the United States. But they just file these forms away, and the government almost never asks to see them. The first Trump administration was working on a regulation to require that the forms be filed with DHS, which would have been a step toward a tougher approach.
It's E-Verify, though, that is the gold standard. Ideally, Congress should pass it, but there's a good case that E-Verify can be implemented under current statutory authority. Certainly, this argument is less adventurous than other legal theories the administration is zealously pursuing.
All of this is academic, however, so long as President Trump shows little interest in E-Verify and forgoes the only realistic means to achieve extensive departures without due process.
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