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The Current Legislative Drought is Nothing New for Immigration

Aaron Reichlin-Melnick, Policy Director, American Immigration Council

& Dara Lind, Senior Fellow, American Immigration Council


The current legislative drought is something that immigration advocates know well. Congress has spent decades avoiding the topic, as the existing system falls into obsolescence and disrepair.

 

Our legal immigration system rests on a 1965 framework last updated in 1990. Our immigration enforcement system is a hodgepodge of century-old laws beefed up during the “tough on crime” 1980s and 1990s. Our asylum system rests on a post-Holocaust consensus codified in 1980 and made into a safeguard from rapid deportation at the border in 1996. Since then, Congress has barely dipped a toe into the issue.

 

Why has changing immigration become so hard? It’s not that the American public can’t agree on anything. While there is substantial disagreement on issues like asylum, bipartisan majorities agree on big-ticket items like providing a path to legal status for undocumented immigrants, speeding up the legal immigration process, and increasing high-skilled immigration.

 

Unfortunately, the parties have become increasingly polarized. Net support for increasing immigration rose from -20% among Democrats in 2008 to 22% in 2023, and fell from -34% to -63% among Republicans. So long as immigration is toxic to one party’s base and positive to the other’s, there’s no incentive to make an agreement.

 

With Congress absent, presidents keep stretching immigration law as far as it can go (or breaking it). In response, the federal judiciary has taken the reins, blocking both excess and progress and leading to policy whiplash. Despite what you learned in school about the branches of government, on immigration the executive branch makes policies; the judicial branch approves or vetoes them; and the legislative branch sputters its disapproval to the cameras.

 

In the meantime, the system is falling apart. People approved to immigrate here will die of old age before a visa becomes available. Delays are so bad that some children of guest workers “age out” of their status and have to leave on their 21st birthday. With unemployment reaching record lows, our immigration system isn’t meeting the demand for workers and has become an anchor on economic growth.

 

At the border, migrants seeking safety face an overwhelmed asylum system, multi-year waits for a day in court and months in limbo without the ability to legally support themselves. Rather than cooperating, state governments use migrant arrivals to score political points, underscoring the need for robust federal coordination of migrant response. Yet Congress keeps doing little more than shovel money to build higher walls or larger detention centers — without making meaningful investments to the process of adjudication.

 

It’s hard to know what’s more frustrating: that Congress won’t tackle the hard questions, or that it won’t take common-sense, incremental measures to make the border manageable again. As we argue in our border blueprint, if we stop fantasizing about short-term solutions to a global issue and focus on the long-term work of bolstering institutional capacity, we can build a functional modern immigration system. But so long as immigration law remains frozen in the 20th century, we can’t solve the problems of the 21st.

 

Author Bio: Aaron Reichlin-Melnick is the Policy Director at the American Immigration Council. His work involves guiding legislative and administrative strategies on immigration issues and providing accurate information about immigrants in the U.S. He previously focused on border and court issues as the Senior Policy Counsel and worked on legal cases and advisories as a Staff Attorney at the Council. Earlier, as an Immigrant Justice Corps Fellow, he represented immigrants in legal proceedings in New York City. Aaron has a law degree from Georgetown University and a bachelor’s degree in politics and East Asian Studies from Brandeis University.

 

Dara Lind is a Senior Fellow at the American Immigration Council. Her role involves creating written resources, engaging with the public, and guiding her colleagues to maximize the Council's impact in immigration policy understanding. Previously, she established herself as a reputable immigration reporter at Vox, where she co-hosted "The Weeds" podcast, and at ProPublica. Her work has been featured in the New York Times and Bloomberg BusinessWeek, and she has made several TV and radio appearances. She started her career in immigration policy as a staffer at America’s Voice.

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