Special Edition — On the election and the paths forward

Immigration news, in context.

As we return to this long-running project of analysis of immigration policy and happenings, this moment in time dictates that we focus on likely its biggest inflection point for the foreseeable future: the 2024 presidential election. As we’ve written before, immigration is perhaps the policy area with the most direct executive control, to the point that Trump reformulated huge swaths of the system without changing any laws. With that in mind, we aim here to take a relatively concise look at some of the stakes, and the possibilities.

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The 2024 presidential election is a choice between overt, unrestrained white nationalism or liberal immigration restriction coupled with meager protections for immigrants who are already here. Still, it would be foolish to equate Harris and Trump’s visions for America. Things could, we’re afraid to say, always get worse.

Trump hasn’t been shy about his immigration plan, but it’s worth recapping anyway. Mass deportations are the centerpiece of his platform, a strategy Trump and his vice presidential nominee JD Vance claim will solve everything from unemployment to high housing costs. Of course, mass deportations wouldn’t only affect undocumented people: they’d tear apart mixed-status families; green card holders and people in the US on non-immigrant visas who ICE considers “deportable” could also be targeted. During Trump’s first term, ICE changed its enforcement priorities to target “all removable aliens.” And while mass deportations aren’t necessarily logistically feasible, an increase in interior enforcement will be an inevitable outcome of Trump’s plan to arrest, detain, and deport as many people as possible. 

We’ll likely also see a complete hardening of the border and restriction of asylum rights, a shift that has begun during Trump’s first and to some extent continued under Biden’s administration. It’s well known by this point that the “bipartisan border bill” Biden and Harris promoted fell apart because of Republican opposition — specifically because Trump’s allies in Congress didn’t want to give Democrats a “win” on the border in an election year. (That bill, despite including some concessions on legal immigration processing, was in large part geared to strip away migrants’ rights to seek asylum, an effort ultimately realized administratively by Biden.) With Trump in the White House, there’s no reason congressional Republicans would hesitate to pass similar — or even more restrictive — legislation. Refugee resettlement would also be slashed, as it was during Trump’s first term. He’d likely rescind Deferred Action for Childhood Arrivals and Temporary Protected Status, leaving hundreds of thousands of people vulnerable to deportation once they cleared now-friendlier courts. 

All of this should sound familiar to those who were following Trump’s policies during his first term. Beyond that there’s reason to believe that during his second term, Trump would go further than before to try to reduce so-called legal immigration. Project 2025, the Heritage Foundation’s playbook for a second Trump presidency, calls for overturning the family-based immigration system established by the 1965 Hart-Celler Act. Its replacement would be a “merit-based system that rewards high-skilled aliens.”

The document also recommends eliminating the diversity visa lottery and, hilariously, dismantling the Department of Homeland Security and replacing it with a more draconian agency that is less subject to independent oversight. Under Trump, “Abolish ICE” was once a rallying cry on the left; now that Democrats have ceded ground to Republicans on immigration, the far right wants to bulldoze our admittedly broken immigration system, only to replace it with one that is more dedicated to cruelty and exclusion.¹

There were some avenues for resistance during the Trump years, but this time around, there won’t be as many guardrails. Three factors acted as hurdles to the full implementation of Trump’s agenda during his first administration: local noncooperation, internal bureaucratic resistance, and the federal courts. These obstacles would likely be weakened under a second Trump presidency.

On the first front, the concerted effort by GOP officials like Texas Gov. Greg Abbott to collapse public and local political support for sanctuary policies and open pro-immigration messaging has been rather successful. Abbott’s bussing — sending asylum seekers with no coordination or even notice to blue jurisdictions in the northeast, particularly NYC — was meant not only as a short-term “own the libs” stunt but a longer-term plan to shift public opinion in what had been the pro-immigrant strongholds during the Trump years.²

A couple of years later, you have a third or more of voters open to the idea of mass deportations (albeit via imperfect polls that probably don’t fully capture sentiment around the idea). Leaders like New York City Mayor Eric Adams musing about how migrants will “destroy” the city and talking cooperating more with ICE. We don’t necessarily think that blue-city mayors are suddenly going to go all-in on the Trump immigration agenda, but they might be a little less willing to stand in the way, and that’s all it really takes. A little more data-sharing can go a very long way.

On the internal controls, MAGA-world figures have been very clear that they view having allowed internal dissent as a fatal flaw of the first term, to the point that making a huge chunk of the federal administrative workforce political appointees subject to functional loyalty tests is a specific plank of the Project 2025 policy book. There won’t be as many agency lawyers or department heads telling Trump that his plans to, for example, shoot migrants in the legs is illegal. The new administration would try to populate the whole of government with executors who put allegiance to him above any considerations of law, which had sometimes stymied policy rollouts during the first term (though certainly not to the extent that it did not engage in illegal practices itself, most notably the family separation initiative).

On the courts, you likely already know that the conservatives have a 6-3 supermajority, with three having been appointed by Trump himself as a result of Senate Republicans’ machinations. That grip extends far beyond the highest court; Trump filled dozens hundreds of federal judicial seats, solidifying conservative control over whole circuits and setting up a pipeline for right-wing litigation to make its way up to SCOTUS. The court most infamously overturned Roe v. Wade, but beyond that has consistently shown itself to find ways to bolster right-wing priorities, and there will hardly be a more concrete one than an immigration crackdown. Certain courts, like the Second Circuit, could still semi-reliably block implementation of certain immigration policies, but probably only temporarily. (Interestingly, the right-wing victory in the overturning of the Chevron doctrine around the administrative state could have certain positive impacts for immigration³).

Meanwhile, the Harris camp has landed at what might be best described as a center-right position, while the MAGA crowd is at a place that could reasonably be called out-and-out fascism. But both of these approaches are to the right, respectively, of where the gravitational center of each party was a few years ago, and there’s little to indicate that this trend won’t continue, because the pulling is happening in only one direction. The upper echelons of the liberal establishment just don’t seem to have the drive to pull forcefully in the other; there’s no liberal Stephen Miller dedicated day in and day out to moving the Overton window and the policy landscape in a specific pro-immigration direction.

This is partly an outgrowth of the fact that the Democrats and the broader center-left establishment don’t seem to have much of a specific vision on immigration, which leaves them trying to engage with the issue around the terms set by their opposition. It’s not that the two parties’ visions converge — they certainly do not, even as both have moved right in recent years — but that the Democrats don’t functionally have one that exists outside the shorter-term electoral dynamics that they’ve been inhabiting during this presidential race.

That’s not to say that there aren’t figures and organizations developing specific plans and pushing for specific outcomes on the left, but they’re now in the position of outside pressure groups, often playing defense. They don’t have the luxury of theirs being core party dogma, as the acute restrictionism is in the Republican party now.

So what does this mean for immigration policy under a Harris presidency? Our best guess is something like a continuation of Biden-era policy, with perhaps a slight rightward slide over time. Despite some of the restrictionist tilt of the Biden administration on the border in particular, where some of the policy approach has mirrored Trump-era tenets, Biden certainly has rolled back aspects of his predecessor’s framework. Most notably, when it comes to internal enforcement, non-asylum humanitarian immigration, and aspects of the family and employment-based immigration systems, the administration has tried to stabilize things back to a prior status quo, with mixed results.

Many of these changes have been somewhat bureaucratic and behind the scenes, like dropping its legal defense of the Trump-era public charge rule; changing U.S. Citizenship and Immigration Services rules to, for example, grant automatic work authorization extensions to allow people to avoid pitfalls that would put them out of status or out of the ability to work; and reinstating the prior ICE enforcement prioritization scheme. While we’ve previously expressed some concerns over the long-term consequences and design of the Biden administration’s humanitarian parole programs, there’s no doubt that these required expenditure of political capital and they have allowed hundreds of thousands of people to enter the country who otherwise would not have had a straightforward option. Now, they’re once again at risk as the administration announces it will not be renewing parole designations for hundreds of thousands of people.⁴

On the personnel side, Alejandro Mayorkas hasn’t exactly been an inspirational figure atop Homeland Security, but he’s no Chad Wolf and Ken Cuccinelli — ideologues more than bureaucrats, who understood their mandate to carry out the long-term anti-immigrant designs. Ditto with Merrick Garland at the Justice Department. Some Biden picks, like Ur Jaddou as director of the USCIS, have come from legitimately and loudly pro-immigration spaces, and while they’re not unconstrained to pursue policy totally of their own accord, they’re able to put this vision forward from within DHS and the other agencies.

One area where we can expect concrete movement is on aslyum, where Harris has had a specific focus and already signaled a hardening. In a late September visit to Arizona, for example, Harris explicitly rolled out plans to tighten up Biden’s already heavy-handed border restrictions, which broadly shut down the possibility for asylum applications once border encounters reach a certain level. Democrats have internalized the idea that it’s a political loser and Harris would probably be keen on projecting force on this, especially given that certain party officials blame immigration for significant down-ballot losses.

Whatever the election might bring, it will have profound effects on the immigration system for years to come.

1. Gaby took a deeper look at the full implications of Project 2025 on DHS for The Nation: https://www.thenation.com/article/society/project-2025-dhs-immigration/

2. In one of those instances where we hate to be right, we have been discussing the possibility of this public opinion shift for years now: https://borderlines.substack.com/p/texas-gov-abbott-doubles-down-as

3. Felipe explored this in more detail in a piece for The New Republic: https://newrepublic.com/article/183366/silver-lining-supreme-court-chevron-immigration

4. The uncertain nature of the parole program caused us to refer to it as a “ticking time bomb” with just this sort of possibility in mind, nearly two years ago: https://borderlines.substack.com/p/biden-administration-proposal-expands