The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At this point, it is clear that Joe Biden will almost certainly be the next president of the United States. While I have many reservations about both him and the Democratic Party more generally, on balance I certainly prefer his victory to a second term for Trump. But it is also clear that Biden's victory was a much closer call than expected. One of the biggest reasons for that was his defeat in the key swing state of Florida, which—analysts believe—was in large part caused by his underperformance with Cuban-American voters, many of whom were spooked by the perception that Democrats are "socialists" and sympathetic to Fidel Castro's dictatorship, which those Cubans (or, in many cases, their parents or grandparents) fled.
Political predictions are always chancy. But I think it's fairly safe to assume that Florida—with its 29 electoral votes—will continue to be an important swing state in presidential and congressional elections for some time to come. And Cuban-Americans will continue to be an important constituency in that state. Thus, it is in the Democrats' interest to try to heal the breach with the Cuban-American community.
And there is a way that soon-to-be President Biden can begin to do so, while simultaneously undoing a grave injustice—and without sacrificing any principles important to liberals. He can do so by undoing President Obama's cruel January 2017 policy reversal on Cuban refugees. I described the issue in a 2017 post written soon after this decision, which was one of the last Obama implemented before leaving office:
There is absolutely no justification for Obama's new policy. It is gratuitously cruel towards Cuban refugees, without creating any meaningful benefits. Despite some modest economic reforms, Cuba remains a repressive communist dictatorship whose people suffer massive oppression and poverty brought on by over fifty years of totalitarianism. Indeed, repression of dissent has actually increased since President Obama began to normalize relations with Cuba in December 2014.
If anything, the United States would have done better to end the "wetfoot" portion of the policy and stop turning back Cuban refugees who have the misfortune to be caught at sea. Where a refugee happens to be found by US authorities is a morally arbitrary characteristic that in no way changes their status as victims of brutal tyranny.
The main victims of Obama's new policy will be Cubans denied the chance to seek freedom and opportunity. But native-born Americans will lose out as well. The hundreds of thousands of Cuban refugees who came to the US fleeing communism have made major contributions to our economy and society. As President Obama himself said just a few months ago: "In the United States, we have a clear monument to what the Cuban people can build: it's called Miami."
President Obama and the US government are not responsible for the oppression that Cuban refugees are fleeing. But they are responsible for using force to compel refugees to return to a nation where further oppression is likely to be their lot. Such action makes the US government partially complicit in the injustice perpetrated by the Cuban regime.
Despite its rhetorical hostility to the Cuban regime and communism generally, the Trump administration has perpetuated the new Obama policy, probably because of Trump's own hostility to immigration of almost every kind. If Biden were to reverse the Obama policy, and do so in a highly visible way, he could draw a contrast with Trump, begin to make amends with Cubans, and also send a strong signal that the Democrats are not a bunch of socialists eager to serve the interests of the Cuban communist dictatorship. And, as noted above, doing so would both benefit the US economy and society, and help save thousands of people from poverty and oppression. He could send a still stronger signal—and do still more good—by eliminating the "wetfoot/dryfoot" distinction and extending refuge to all Cuban migrants, regardless of whether Us authorities find them on land or at sea.
The principal justification for the Obama policy is the idea that it is unfair to give Cuban refugees more favorable treatment than those fleeing other oppressive regimes. I address that partly legitimate concern in my 2017 piece:
The main rationale for the policy change is that it is unfair to treat Cuban refugees differently from those fleeing other oppressive governments. As President Obama put it, we should treat them "the same way we treat migrants from other countries." Ideally, we should welcome all who flee oppression, regardless of whether their oppressors are regimes of the left or the right, or radical Islamists.
But the right way to remedy this inequality is not to treat Cuban refugees worse, but to treat other refugees better. And if the latter is not politically feasible, we should at least refrain from exacerbating the evil by facilitating the oppression of Cubans. It is better to protect Cuban refugees from the risk of deportation than none at all.
If a police force disproportionately abuses blacks, it would be unjust to "fix" the inequality by inflicting similar abuse on whites or Asians. Inflicting abuse on other groups is both unjust in itself and unlikely to help blacks. Similarly, the injustice inflicted on refugees from other oppressive regimes cannot and should not be corrected by imposing similar injustices on Cubans.
In a world where it is not politically feasible to let in all refugees, beginning with those fleeing Cuba is defensible because that regime is the most oppressive of any within a close distance of the US. I elaborate on the relevance of that kind of consideration in greater detail in Chapter 8 of my recent book Free to Move: Foot Voting, Migration, and Political Freedom. And reopening the door to Cubans would not actually have the effect of excluding anyone else who can get in under current law.
I would add that any perception of favoritism can be mitigated by the fact that Biden also plans to take action to make immigration easier for a variety of other groups, including refugees fleeing various types of right-wing dictatorships. That's one of the main reasons why I voted for him!
There are other things Democrats could potentially do to improve their standing with Cuban-Americans, and others who have fled socialist despotisms, such as Venezuelan immigrants. For example, they could take a tougher foreign policy line against these regimes, and marginalize the "democratic socialist" wing of their own party. But those steps (which I also favor) might be politically difficult, and potentially cause conflict within the Democratic Party. Opening the door to Cuban refugees is unlikely to cause Biden any such political trouble.
By advocating this idea, I realize I have become the umpteenth person to say that something they favor anyway is politically advantageous. For what it is worth, I am well aware that I advocate many unpopular views, including on immigration issues. A candidate or party that espoused everything I support would be highly unlikely to win any elections, at least for a long time to come. In this case, however, the expedient and the just actually overlap.
UPDATE: I have made a few minor additions to this post.