Bernie Sanders's immigration plan: What happens on Day 2?

Bernie Sanders's immigration plan: What happens on Day 2?
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Sen. Bernie SandersBernie SandersWarren, Buttigieg fight echoes 2004 campaign, serves as warning for 2020 race Democrats battle for Hollywood's cash Sanders, Omar to hit campaign trail in New Hampshire MORE (I-Vt.) has released an ambitious plan to change many aspects of America’s broken immigration system. His plan, “A Welcoming and Safe America for All,” combines dozens of policy ideas, many of which he promises would happen on “Day 1” if he is inaugurated as America’s next president. Some of these proposed policy changes are very good.  Others are not. And the way he proposes to implement these changes is troubling.

Sanders’s proposed changes to the immigration court system are necessary and long overdue.  These changes include restoring discretion to immigration judges, making the immigration court system independent, and establishing a right to counsel in immigration court. It’s no secret that the current immigration court system isn’t working for anyone involved. More than 1 million cases are waiting to be heard. Immigration judges are overworked and their authority has been stripped away by political policies and case completion guidelines. 

Immigrants wait years for hearing dates. Without a right to counsel, many of them face their hearings alone and have no real chance to present their cases effectively. As Americans, we have a fundamental responsibility to make sure that our court systems reflect our values and allow for full and fair consideration of each case. Sanders’s plan would help do that.

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His plan to expand parole authority and deferred action programs (such as DACA and TPS) is also positive. The authority to grant exceptions to the immigration laws for humanitarian reasons already exists. To be sure, Sanders promises to expand it in almost every way possible, including updating DACA to cover “all those who came to the United States under the age of 18” and granting parole to “the families and caregivers of citizens and legal permanent residents and employed workers.”  

It’s hard to know how this would work out in practice, and reasonable people can disagree over the scope of his plan. Still, for those who have watched the Trump administration close off one avenue of immigration relief after another, it would be refreshing to see some semblance of humanity restored to the system.

The part of Sanders’s plan that grabbed the most headlines — his proposal to “break up ICE and CBP and redistribute their functions to their proper authorities” — actually is not particularly radical. Before the creation of the Department of Homeland Security, law enforcement and border security functions were spread across several different federal agencies. Sanders’s plan would return most of them to the agencies from which they came (for example, sending immigration prosecutions back to the Department of Justice and customs authority back to Treasury). 

Think of it as restoring a system of checks and balances, which is a quintessentially American approach to government power.

However, some parts of Sanders’s plan raise serious red flags. He promises a “moratorium on deportations until a thorough audit of current and past practices and policies is complete,” with no explanation of what would happen in the meantime to people who really are a danger to the public (such as violent criminals) or how long such an “audit” would take. He promises to admit at least 50,000 “climate migrants” during his first year in office, without any explanation of what that means. He guarantees that any undocumented immigrant who has “lived, worked and contributed” in the United States for at least five years would be shielded from deportation, without any information about what effect this policy might have on the economy or any other aspect of American society. And there’s no indication of how all these changes would be implemented — much less how much they would cost. Obviously, changes of such magnitude would have major effects on the U.S. economy and society, but Sanders’s plan is silent on how they would be implemented or what likely would happen. 

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One major flaw in his plan is that, despite its length and list of promises, it does not actually set out a framework for comprehensive immigration reform. It completely ignores the need to update and reform immigration laws relating to entrepreneurs, small business owners, skilled workers and university graduates. A modern immigration policy in these areas would help stimulate the economy, create jobs, and help push the United States back to the forefront of world destinations for creativity and growth. 

The fact that Sanders ignores this part of the immigration system raises fair questions about whether his is really a plan for reform, or just a tool to help deliver progressive votes in the Democratic primaries.

The most troubling part of Sanders’s immigration plan, however, is how he intends to carry it out. There is no discussion of working with Congress on proposals to actually revise immigration laws and bring about lasting change. Instead, Sanders states clearly that he intends to implement his ideas by executive order. His plan states that he would “not accept delays from Congress” and would “use the constitutional authority vested in the president to take bold and necessary executive action if Congress fails to enact the commonsense immigration reforms supported by the vast majority of Americans.”  

But orders issued by one president can be revoked by another, and issuing presidential declarations is no substitute for actually reforming the system. If Sanders is serious about changing the immigration system to promote fairness, justice and equity, he’ll need to expend some of his energy toward long-term solutions, rather than short-term fixes. 

So, is Sanders’s immigration plan really a blueprint for policy, or just a pitch for Democratic primary votes? Who knows. Political plans have a way of changing once a politician gets into office. Still, if the past three years have taught us anything, it’s that you can’t just dismiss a politician’s rhetoric because it seems extreme at the time. There’s always the chance that, if elected, they might actually do what they said.

Sanders has told us what he would do on Day 1 in the White House. He would use executive power to its utmost limit to expand protections for undocumented immigrants, halt deportations, decentralize Immigration and Customs Enforcement and Customs and Border Protection, and prevent the removal of millions of undocumented immigrants who have been in the United States for five years. 

What would happen on Day 2? 

Martin W. Lester is an immigration attorney based in Hixson, Tenn. Follow him on Twitter @LesterLawTN and Facebook @MartinWLesterPA.