The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Address Border Chaos by Making Legal Migration Easier
Cato Institute immigration analyst Alex Nowrasteh has an excellent piece on this subject.
Since the election, a conventional wisdom has emerged to the effect that Democrats lost in large part because Joe Biden adopted lax border policies, which led to voter backlash against an influx of immigration, and therefore that tougher immigration restrictions are the road to political success. In an insightful recent piece, my Cato Institute colleague Alex Nowrasteh pushes back on some key parts of this narrative.
As Alex points out, Biden in fact did adopt numerous restrictive border policies, including continuing draconian Title 42 expulsions under bogus "public health" pretexts until May 2023, Trump-lite asylum restrictions, and more:
[David] Leonhardt ignores Biden's numerous actions on the border, from maintaining Title 42, reinstating Remain in Mexico, curtailing asylum, boosting deportations and removals over the level of Trump, and over 100 other actions to shut illegal immigration. Leonhardt blames Biden's campaign statements that imply immigrants should come to the United States. Still, Leonhardt ignores his numerous statements to the contrary since the election – such as in March 2021 when he said, "I can say quite clearly: Don't come."
President Biden even sent his VP and eventual Democratic presidential candidate Kamala Harris to Central America to repeat the message "Do not come" in 2021 – a tour that primarily highlighted the administration's inability to stop illegal immigration. Leonhardt has no explanation for why Biden's words mattered when they seemed to encourage illegal immigration, and they didn't matter when he sought to more clearly and forcefully persuade people not to come.
As Alex explains, these policies could not prevent extensive illegal border-crossing, because the latter was primarily dictated by strong US labor-market demand, and horrific oppression and economic conditions in many of the migrants' countries of origin. Indeed, restrictive policies making legal entry difficult or impossible for most would-be migrants predictably exacerbated the illegal kind. That, in turn led to the kind of disorder and chaos at the border that angers many voters, and make it politically difficult to expand opportunities for legal migration, even though the latter are the best way to prevent the chaos voters dislike.
As Alex puts it:
Border chaos is an ally of ideological immigration restrictionists like Stephen Miller, who use it to support restrictions on legal immigration. Reducing legal immigration was the greatest achievement of the Trump administration's immigration policy from Miller's perspective, and it will be again. The president has control over legal immigration; he doesn't have nearly so much power over illegal immigration…..
This is the Catch-22 of expanding legal immigration. Border chaos is caused by restrictive US immigration laws that make legal immigration impossible for most, but border chaos prevents liberalization because voters are understandably repelled by disorder. More enforcement reduces illegal immigration, but only temporarily and at high costs. With the economic benefits of migration as high as they are, it's truly incredible that the government is able to reduce immigration as much as it currently is able to, but it will always look like an utter failure.
In cases where Biden did make legal entry easier, as with the creation of the CHNV program for migrants from four Latin America nations, illegal entries from those countries declined greatly. Unfortunately, as David Bier and I explained in a 2023 article, arbitrary numerical caps and the limitation of this program to only four countries severely limited its effects.
For what it's worth, Alex, David Bier, and I have long argued that disorder at the border strengthens restrictionist sentiment, and that increasing legal migration opportunities is both good in itself, and a valuable strategy for reducing chaos and disorder. As Alex likes to put it, we need to "make immigration policy boring." His new article includes a useful thought experiment illustrating this point:
Imagine the 2024 election without the over 7.2 million border encounters during Biden's administration. Imagine a lack of shocking videos of thousands of migrants streaming across the Rio Grande, rushing Border Patrol agents, or turning themselves in to law enforcement in the desert. There are no images of barbed wire, fortifications that look like they're being stormed, soldiers, tear gas, or smugglers dropping children off on the US side of the river.
Imagine, instead, 7.2 million more legal immigrants and temporary migrant workers flying into the US on lawful visas to live, work, and start businesses during Biden's administration (encounters and individuals aren't the same, but work with me). They mostly came from a dozen Latin American countries and arrived in hundreds of locations across the US as families or as individual workers. No dramatic bussing by Texas' governor, no mass chaos at the border. Just millions of more people orderly entering through a legal immigration system simplified and expanded by Congress and an administration seeking more order and legal immigration.
No reporters would be making their careers filming border chaos because there wouldn't be much to film. Calls to build a wall would sound like fanciful calls to build a giant space laser to ward off space aliens. Immigration would have dropped from a top-tier issue to third or fourth-tier – at best.
The Democrats might still have lost the election thanks to inflation and price increases (The most important issues for voters, according to surveys). But immigration would not have been a significant cause of their woes.
Obviously, disorder at the border isn't the only cause of anti-immigration sentiment. There are also various economic and cultural arguments, plus generalized xenophobia. But disorder is nonetheless a major factor, that easing legal migration could greatly reduce.
Alex makes many more good points, which are not easily summarized here. If you're interested in these issues, read the whole thing!
I would just a couple points to his analysis. First, much of the trouble supposedly caused by migration in various "blue" cities is actually a result of asylum-seekers not being allowed to work legally in the US for many months after arrival, and zoning rules that make it difficult or impossible to build new housing in response to demand. Letting migrants work immediately and developers build new housing would simultaneously bolster the US economy and reduce anti-immigration sentiments caused by seeming burdens on city budgets.
Second, like Alex, I favor reducing migrant access to welfare (though, as he notes, migrants already use it at much lower rates than natives). But I am not, so far, convinced this will make a big difference to public opinion. Most voters are "rationally ignorant" about policy details and don't know to what extent migrants (or even natives) have access to various welfare benefits. Chaos at the border has more of an impact on public opinion because it is dramatic, and often readily visible even to people who don't follow politics closely and don't know much about most policy issues.
