Democrats have a terrible habit, during moments of right-wing backlash, of voting for Republican legislation that they don’t seem to truly believe in and eventually live to regret.
The most glaring example is the 2002 resolution authorizing military force against Iraq, passed amid the explosion of jingoist groupthink that dominated American politics after the Sept. 11 attacks. Democratic presidential candidates who’d backed the resolution — John Kerry, Hillary Clinton and Joe Biden — would later tie themselves in knots trying to rationalize votes that were almost certainly motivated by political expediency, and which put their imprimatur on a catastrophe.
Another shameful episode was the 1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages. It passed at a time when Democrats were on the defensive; Bill Clinton’s attempt to let gay people serve openly in the military had fallen apart, Newt Gingrich’s Republicans took the House in the 1994 midterms, and Republican Bob Dole seemed poised to make gay marriage an issue in the coming election. In a weirdly apologetic signing statement, Clinton wrote that the law should not be “understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation.” But as Clinton would later acknowledge when calling for its repeal, it did something worse, writing discrimination into law.
A bill called the Laken Riley Act, which overwhelmingly passed the House and could soon pass the Senate, is destined to be another entry in this archive of legislative shame. Given that anger over mass migration contributed to Democrats’ defeat in November, it’s perfectly understandable that some Democrats would tack right on border issues. The Laken Riley Act, however, is the wrong vehicle for proving their moderation. This sweeping bill will upend our immigration system in ways that will outlast Donald Trump’s presidency, ruining lives and handcuffing future Democratic administrations. Democrats who vote for it may dodge right-wing attacks in the next election, but once its true scope becomes clear, they’ll be answering for it for years to come.
The bill is named after a Georgia nursing student who was murdered last year by Jose Ibarra, a migrant from Venezuela living in the country illegally who had previously been apprehended for crimes including shoplifting and child endangerment. Due in part to Ibarra’s arrest history, the case became a cause célèbre on the right. “The more they get away with and the more we let these criminals go, it just emboldens them, and they step it up,” said Mike Collins, the Georgia Republican who introduced the measure in the House.
If all the bill did was mandate the deportation of migrants convicted of petty theft, it would make sense for many Democrats to back it, if only because there’s so little political upside in defending the rights of shoplifters who are living here illegally. But the bill goes much further than that. It mandates federal detention without bail for migrants who are merely arrested for any theft-related crimes, with no provision to free them if the charges are later dropped. (According to Axios, Immigration and Customs Enforcement is worried that to make room for those accused of theft, it would have to release others in its custody, including some considered “public safety threats.”)
The bill applies to many immigrants who are authorized to be here, including Dreamers and those with temporary protected status. And the legislation contains no exemption for minors. As Ilya Somin, a law professor at George Mason University, told me, the Laken Riley Act could mandate the indefinite detention of a juvenile child of asylum-seekers arrested for swiping a candy bar, even if he or she didn’t do it.
One of the act’s other provisions would give state officials unheard-of power over immigration policy. If the bill passes, a state attorney general could sue to block all visas to people from “recalcitrant countries” that don’t fully cooperate with the United States in accepting deportees, a list that includes China, India and Russia. This section of the Laken Riley Act may not matter much when Trump is in office; Republican attorneys general probably won’t want to challenge the president, and Democrats are unlikely to demand harsher immigration crackdowns. But if we ever have another Democratic president, it’s easy to picture the most conservative state prosecutors suing to block the issuance of visas to, say, people from China. Immigration policy would be subject to a chaotic fight in the federal courts.
Though the measure passed the House overwhelmingly last week, Democrats could still block it in the Senate, where it needs 60 votes to overcome a filibuster. Alas, that seems unlikely to happen. Last week, only nine Senate Democrats voted against proceeding to debate the bill on the Senate floor. Sens. John Fetterman of Pennsylvania and Ruben Gallego of Arizona are co-sponsors of it, and several other swing-state Democrats have announced plans to vote for it. Fetterman told reporters last week that fellow Democrats had experienced a “blinding flash of common sense.”
But the Democrats’ failure to muster opposition to this bill isn’t common sense, it’s cowardice. Given the lessons of the last election, it’s wise for Democrats to defy pro-immigrant interest groups when those groups make politically insupportable demands like abolishing ICE or decriminalizing illegal border crossings. That’s very different, however, from completely capitulating to Republican demagoguery with little evident concern for the long-term consequences.
Someday, when public opinion on immigration shifts again, Democrats who voted for this cruel and misguided bill will have a hard time justifying it. If only they could save themselves and us the trouble.
This article originally appeared in The New York Times.
