Only Legislation, Not Litigation, Can Fix Our Immigration Challenges

(CQ-Roll Call) -

Last month, the American Civil Liberties Union sued the Trump administration over its new requirement that asylum seekers remain in Mexico while their claims are processed in the United States. …The constant litigation has weakened our capacity to pursue meaningful immigration legislation through compromise, while rolling the dice on the fates of millions of immigrants themselves.

Just look at the multiple fronts in the legal battles between the administration and immigration advocates.

Federal district courts have issued nationwide injunctions against President Donald Trump’s decisions to end the Deferred Action for Childhood Arrivals program and Temporary Protected Status for several countries, keeping these programs on temporary lifelines. Federal courts have also repeatedly rejected the Trump administration’s efforts to claw back funding for Department of Justice programs from cities and counties with so-called sanctuary laws. The administration has lost several legal fights over its family separation policy and its efforts to limit access to asylum protections at the U.S.-Mexico border.

Finally, the Supreme Court ended nearly a year’s worth of litigation against Trump’s travel ban, leaving its latest version intact, much to the consternation of advocates who fought against its initial implementation in January 2017. This case is the only one to reach the Supreme Court, showing how the judicial route can keep immigration policies in limbo for years as cases wind through the federal court system.

Amid it all, the administration and advocates have largely ignored the body charged with actually governing immigration: Congress. As the branch of the U.S. government tasked with writing our nation’s laws, Congress should be the place where different sides debate, advocate and hopefully advance permanent measures to fix our broken immigration system.

Unfortunately, Congress has repeatedly failed to live up to this responsibility. Rather than acting, lawmakers have allowed partisan polarization and maneuvering over immigration to undermine broader efforts. It’s little surprise then that advocates and successive administrations alike have looked to other avenues, like executive action and the courts, to resolve our immigration problems.

And Congress has felt little pressure to intervene. Rather than providing clarity for immigrants and their communities through consensus-driven legislative solutions, each legal victory launches a new round of politicized appeals that threaten trust in the judicial branch as an impartial arbiter of law.

These points haven’t been lost on the nation’s judiciary. Last November, Chief Justice John Roberts wrote, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

In his decision last July on the legality of California’s sanctuary policies, U.S. District Judge John A. Mendez wrote, “This court joins the ever-growing chorus of federal judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bipartisan fashion toward drafting and passing legislation that addresses this critical political issue. Our nation deserves it. Our constitution demands it.”

Mendez’s call to action applies to every aspect of a polarized immigration debate that undermines efforts to develop viable long-term solutions through consensus and compromise.

To be clear, we’re not suggesting that litigation has no place in shaping our nation’s immigration laws and policies. Plaintiffs should have the right to challenge egregious practices or laws that cause harm and require legal intervention. The Trump administration’s family separation policy, which had moral and logistical deficiencies in deterring undocumented immigration, serves as an example.

Nevertheless, litigation should not be a substitute for legislation to fix our nation’s immigration system, especially when court decisions can set legal precedents that further confound and counter policy goals. While developing legislation through compromise may not generate the same rush as scoring a legal victory over an ideological opponent, it is a healthier and more inclusive way to work through our serious immigration issues.


Cristobal Ramon is an immigration policy analyst at the Bipartisan Policy Center.

Theresa Cardinal Brown is director of immigration and cross-border policy at BPC and served in the Department of Homeland Security during the George W. Bush and Obama administrations.