[Cross-post from ImmigrationProf Blog]
By Kevin R. Johnson
As the nation heads toward the 2024 election, the presidential race will almost certainly be a rematch between former President Donald Trump and President Joe Biden. A recent poll found that voters believed that immigration – not the economy, health care, abortion, or climate change – is the most pressing issue facing the nation.
As president, Trump pursued an aggressive immigration enforcement approach, combined with restrictions on legal immigration and fiery helpful rhetoric about immigrants. In running for a second term, he has double-downed on his immigration agenda, promising to step up enforcement and, in ways reminiscent of Hitler’s attacks on Jewish people, condemning immigrants for “poisoning the blood of our community.”
In contrast, in the 2016 election, Biden ran on a more moderate and conventional platform on immigration. He promised to lift some of President Trump’s tough policies -- and he did. Biden also did not use the hateful anti-immigrant rhetoric that Trump employs to energize and inflame his base.
Here are four ways that a Trump and Biden presidencies might differ on immigration:
1. The Terms of the Debate and Aftermath
Trump: If elected, Trump would likely speak about immigrants as he did his first time around, as “criminals” and “rapists,” migrants from developing nations as coming from “s---hole” countries, and regularly characterizing the wave of immigrants to the United States as an “invasion.” By so doing, he would likely contribute to immigrants’ fear of government, which might inhibit them from accessing public benefits and services (including education) for which they are eligible. Fear of police also might make it less likely for immigrants to report crimes. Trump’s rhetoric and policies are likely to further embolden political leaders in Republican states to take aggressive, and in some instances unlawful, immigration enforcement measures.
Biden: As he has done in the past, Biden likely would not employ harsh, derogatory, and racist language about immigrants. He would be more likely attempt to soothe, rather than weaponize, the terms of the discussion of immigration policy. Immigrants thus would be less likely to fear government than in a Trump second term. This is true even if, as rumored, the Biden administration implemented expanded removal and related measures at the border in his second term. A second Biden administration is more likely than a second Trump administration to sue state governments for interfering with the power of the federal government to regulate immigration.
2. Contrasting Policy Initiatives to Deter Migrants
Trump: President Trump embraced the immigration policies with the broadest impacts, even if close to (or beyond) legal limits. He championed construction of the U.S./Mexico border wall, declared “zero tolerance” toward undocumented immigrants, invoked the unknown Title 42 law to close the U.S./Mexico border in the name of public health, implemented the Return to Mexico policy making migrants wait in Mexico while their asylum and other claims were being decided, imposed a ban on Muslim migrants, separated migrant families at the border, employed mass detention of migrants by ending what he called “catch and release,” and more. The courts halted some of his immigration initiatives. For example, a conservative Supreme Court rejected Trump’s effort to rescind the Deferred Action for Childhood Arrivals policy, which provided united relief to young undocumented immigrants. Other Trump measures, like the Muslim ban, survived by a 5-4 vote in the high Court.
Biden: In contrast, President Biden has taken a relatively moderate and deliberate approach to immigration that is calibrated to respond in a targeted fashion to migrant flows. There is no indication that there would be a significant change in a second Biden term. He dismantled many of the most aggressive Trump immigration enforcement policies, such as the Muslim ban, Title 42 order, and Remain in Mexico policy, and is likely to pursue more moderate approaches that more closely adhere to the rule of law than Trump’s initiatives. As the 2024 election neared, Biden promised to enhance border enforcement. Even so, his measures are unlikely to approach the extremes of President Trump’s.
3. Limits on Legal Immigration
Trump: The Trump administration restricted legal immigration, with immigrant visa approval rates declining (although not as much as one might expect). In a second Trump term, legal immigration, including of skilled employees and students, again would likely find it more difficult to come to the United States. With reduced immigration, the labor crunch after the pandemic, along with declining fertility rates, likely would be exacerbated. Upward pressures on wages would likely result in price inflation.
Biden: Biden in his first term has not unduly restricted legal immigration and not expressed a desire to do so in his second term. Consequently, his legal immigration policies likely would not significantly righten the labor market and are unlikely to have the inflationary pressures of President Trump’s immigration measures.
4. Attacks on Birthright Citizenship
Trump: Trump repeatedly has attacked birthright citizenship and “anchor babies.” He has made radical claim that the President and Congress could eliminate birthright citizenship. That position is contrary to the views of reputable constitutional and immigration law scholars.
Biden: Biden has never questioned birthright citizenship. He has accepted the conventional interpretation of the 14th amendment as bestowing U.S. citizenship upon birth in the United States.
Conclusion
The outcome of the 2024 presidential election will likely have meaningful immigration law consequences. The immigration initiatives of Trump and Biden almost certainly would be very different and have very different consequences on immigration to the United States.
