As they watch the Trump administration’s dysfunction unfold, there is a growing temptation for Democrats to ignore difficult questions.
Trump’s approval ratings are already sinking and the real impacts of his policies haven’t even hit voters yet. Even Trump himself is having second thoughts, backing away from his original tariffs and openly musing about exempting some sectors of the economy from immigration raids. Why should Democrats struggle with a divisive issue like immigration policy when voters will boot Republicans out just to end the madness?
The answer is because they must. When it comes to immigration, there is no returning to the status quo ante, even if Democrats win the next two elections in landslides. Heavy-handed Immigration and Customs Enforcement raids and handcuffed senators aren’t going to change that, no matter how often they happen. If Democrats have nothing to offer but complaints, they risk handing the issue back to Republicans, since voters often prefer misguided effort to clueless complacency.
Republicans are actually quite vulnerable when it comes to immigration. Although voters want to see something being done, many aren’t comfortable with Trump’s chaos and cruelty. Even hard-core MAGA voters must be slightly queasy about abandoning Afghans who believed America’s promises and can never go home again because they risked their lives to help us. They cannot be entirely comfortable with forcibly deporting law-abiding people who have lived in their communities for decades.
So Democrats need to bite the bullet and take the initiative on immigration and border security. Here are two things Democrats can do that will turn this into a Democratic issue.
The first is the easiest: Push a bill that will make it a federal crime to organize birth tourism. Nobody thinks that birth tourism — organized trips to the U.S. by pregnant women with the express intent of giving birth on American soil — is a good thing. But Republicans would rather complain about it than do something about it, their profoundly unserious effort to end birthright citizenship being a case in point.
The only significant efforts to end birth tourism arose out of investigations that began in the Obama administration. Democrats could revive this, and it would wrongfoot congressional Republicans. To oppose it or to back it would just be different kinds of political poison for them. It would also be extremely popular with the public and make it clear that Democrats are now taking immigration issues seriously.
The next proposal is a touch more controversial: a Democratic bill to implement some version of the first-safe-country rule for asylum-seekers.
Under the first-safe-country rule, if asylum seekers have transited a safe country before reaching the U.S., they will have to have applied for asylum there and refused before the U.S. will consider their asylum application. This might sound draconian, but the U.N. admits, albeit grudgingly, that it does not violate international law. Even the Biden administration wanted to apply it in some cases.
I recognize that a lot of people will have an emotional reaction to this idea but objectively, the rule makes a lot of sense. If you have a well-founded fear of persecution in your home country, you are entitled to a safe place to live. That doesn’t mean you are automatically entitled to live wherever you want. Being a victim of persecution is a violation of basic human rights. Having to settle in Brazil instead of Miami is not.
Worse, the current system amounts to a sort of immigration Hunger Games. Hundreds of thousands of people from dozens of countries are often transiting multiple continents — including passing through the notorious Darién Gap on foot — to present themselves at the U.S.-Mexico border and claim asylum. That’s both absurd and extremely dangerous for the migrants themselves.
Whether you are a Republican or a Democrat, it is beyond dispute that America’s immigration laws, especially when it comes to refugees and asylum, are obsolete. In the words of one court, “Forty years ago, Congress recognized that refugees fleeing imminent persecution do not have the luxury of choosing their escape route into the United States.”
That might have been the case forty years ago, but it certainly isn’t true now. Asylum seekers meticulously plan their routes to the U.S. in a world where travel is cheap and information is free and instantaneous. The current asylum system is too easily gamed, and everyone now knows how to game it.
The asylum system may be broken, but that doesn’t mean that the only answer is a reign of terror and cruelty designed to make asylum seekers more frightened of the U.S. than the countries they are fleeing. Good legislation is hard work, which is why the Trump administration has shown little appetite for legislating at all, preferring to rely on executive orders and photo ops.
That leaves a gap for Democrats to fill. Reforming the asylum system will be viewed by many progressives as selling out. But Democrats should look on this not as a surrender, but as a righteous cause.
Controlling America’s borders is part of American security. Protecting asylum-seekers is part of America’s soul. We can do both — we must do both. It will be a hard lift for Democrats, but the alternative is too awful to contemplate.
Chris Truax is an appellate attorney who served as Southern California chair for John McCain’s primary campaign in 2008.
