During the Trump Presidency, the primary set of laws that governed immigration to the US was replaced with stricter ones that limited immigration numbers much more than previously. Now, during the Biden administration, Republican candidates for the 2024 presidency are talking about further immigration reform and bringing back some of the Trump-era policies. So, what are the existing laws and how do they differ from the ones that preceded them?
In addition, what is it that the presidential candidates want to change? As we are currently in a democratic presidency, we will look at the ideas of Republican candidates and see what types of reforms they are proposing.
Title 8 and the foundation of current US immigration policy
The primary set of laws that has been the foundation for US immigration policy since the 1940s is known as Title 8 of the US Code. Title 8 was first conceived in 1940, and it comprises laws that fall under the category “Aliens and Nationality.”
The overall pre- and post-Covid interpretation of Title 8 is that people who cross the border into the US illegally are to be “processed for removal.” This does not necessarily mean that all of them are turned back. People in this situation undergo “credible fear screenings.” What this means is that these people are interviewed to determine whether the situation that they are running from is truly dangerous.
The same people must also undergo a criminal background check. If a person indicates any history of criminality or previous deportation, that person will immediately be turned back.
There are a lot of finer points to this overall structure, however, and a lot of state laws that also potentially come into play depending on the precise point at which a given person enters. We will first take a look at how these laws developed throughout the course of the 1900s, and then review where they stand today. Finally, we will look at the proposals for amending them further.
The development of US of immigration policy in the 20th century
Title 8 was put into force in the form of the Immigration and Nationality Act of 1952, which was a modification of the Immigration Act of 1924. The 1924 Act (otherwise known as the Johnson-Reed Act) limited the number of immigrants that could enter the US to two percent of the total number of people that were in the country at the time of the 1890 census.
The 1952 revision (also known as the McCarran-Walter Act) altered the 1924 policy to include new quotas for nationalities that had populations in the US as of 1920. The 1952 law stated that quotas up to .06% of each of the foreign-born populations represented in the US in 1920 would be allowed to enter annually. As the nationalities at that time were primarily of Northern European origin, this change resulted in over 130,000 visas being given to people from this region each year for many years following the passing of the Act.
There were several further revisions in subsequent decades. The Immigration and Naturalization Act of 1965 (also known as the Hart-Celler Act) eliminated the quota system in an attempt to diversify the immigrant population more during what was a period of difficult transition in the area of minority rights in the country. In the 1980s and 90s Presidents Reagan, Bush Sr, Clinton, and Bush Jr each enacted policies that altered the system to different degrees.
One of the major reforms that was implemented in the 1990s was the Immigration Law of 1990 passed by President HW Bush. This law resulted in the creation of a “diversity lottery” that went into action in 1995. This law was intended to diversify the foreign population in the US by allowing for a greater number of people to enter from countries that have low immigration rates. It allowed for 55,000 people from these types of countries to enter the US every year.
Covid, Title 42, and further changes under Trump
A major change in the system came in March 2020 with the onset of the pandemic. Then-President Trump reenacted an old clause that was initially part of a 1944 Health Services Law, known as Title 42. Title 42 is the section of the US code that deals with public health, social welfare, and civil rights.
President Trump issued a public health order at that time, invoking Title 42, which allowed for the expulsion of immigrants at the US border because of health concerns related to the pandemic. However, many people criticized Trump for using the law as an excuse to deport people unrightfully.
In addition to invoking Title 42, President Trump initiated other policies intended to strengthen immigration, including the creation of a “Zero Tolerance” policy for adults that illegally cross the border. This action was also severely criticized by Democrats – and even some Republicans – as it resulted in the separation of children from their parents. Trump’s ultimate hope was to replace the diversity lottery with new immigration policies that focused more on merit than national origin.
Additional Trump measures included suspending the Deferred Action for Child Arrivals (DACA) program, which provides young adults who came to the US as children protection from deportation, as well as temporary and potentially renewable work permits.
Perhaps Trump’s most well-known immigration-related action was to initiate the construction of a border wall between the US and Mexico, the construction of which started in 2018. This process was halted with the changing of administrations in 2020.
The Biden administration has made a number of changes to Trump-era policies. The reinstatement of Title 42 restrictions came to a close this year, as had been planned from the beginning. This was despite many objections from Republicans, who said that the time was too early and that Covid continues to be a threat that we should watch out for. Democrats largely claim that Republican objections were simply an excuse to keep Latin Americans from entering the country.
Related changes that President Biden has made include lifting restrictions on visas issued to immigrants that had been put in place during the pandemic. Biden has also boosted refugee admissions – Biden increased the amount that had seen historic lows of 15,000 under Trump by over 700%, placing a new cap at 125,000.
There are many other changes that Biden has either enacted or proposed making in the system, including eliminating the Zero Tolerance policy enacted by Trump. Nonetheless, Biden has received criticism from Democrats who say that his reforms have not gone far enough in granting asylum for people crossing the border. With the lifting of Title 42, the Biden administration enacted new rules that include requiring people to apply online in advance of entering, and impose harsh penalties on people that do not follow these rules.
Where do the Republican candidates for President stand on immigration reform?
In this section, we will look at the views of Republican presidential candidates Ron DeSantis, Chris Christie, Mike Pence, Vivek Ramasarmy, and Nikki Haley. While Trump has promised a continuation of his previous policies if elected, we will see how his competitors view the subject.
Ron DeSantis has proposed policies similar to Trump’s, and also similar to ones that he has already enacted in the state of Florida during his tenure as governor there. One of the measures that DeSantis has taken to prove his hard line on immigration is to send migrants entering illegally through Mexico up to northern states. DeSantis’ aim in doing this is to illustrate to northern states that difficulties that states like Florida endure as a result of being physically close to Latin America. Other Republican governors have taken similar measures.
There are specific actions that DeSantis has taken in Florida, and proposes enforcing more strictly on a national level, including requiring use of the E-Verify system in businesses. The E-Verify system is a system that verifies the immigration status of potential employees before they are hired. If a Florida business fails to use E-Verify three times within the course of two years, that business can be fined $1000 a day.
DeSantis’ other proposals include limiting or even ending birthright citizenship, which is a law that has been in place since 1868. He also intends to finish the southern border wall that was initiated by Trump, and even send US forces into Mexico in an effort to combat Mexican drug cartels.
Many people believe that these proposals – although popular among Republicans – would be too difficult to initiate as they would require many legal precedents to be reversed, and even a change in the constitution.
Although he represents a northern state and does not face the direct border issues that southern states do, former New Jersey Governor Chris Christie has proposed similar measures to those of his Republican counterparts. However, he has wavered on such subjects as the DREAM Act, which allows for tuition grants to be given to immigrants who came to the US as children. Republican hardliners suggest that Christie’s changing stance on this subject was part of an effort to secure Latino votes during his time as governor.
Christie has also gone so far as to propose sending the National Guard to the border in order to prevent people from entering illegally and intercept the smuggling of fentanyl. He has criticized both Trump’s and Biden’s immigration policies as being weak and ineffective.
The former Vice President under Trump has stated that he largely agrees with Trump-era policies, with the exception of the policy that separated family members from each other. Pence supports resuming construction of the border wall and reinstating the policy of “remain in Mexico” for people seeking asylum.
Pence has, however, advocated a guest worker program that allows for people to come to the US for short periods of time, work in industries where manual labor is needed, and then return to their home countries. He has said that he only supports this idea if its rules are strictly enforced, the people involved are forced to pay taxes, and if they leave upon completion.
Himself the son of immigrants, Vivek Ramaswamy has also proposed a far-right immigration agenda that would undo many of the Biden-era policies. Like most of his Republican counterparts, Ramaswamy has proposed eliminating lottery-based visas in favor of a more merit-based visa system. He cites his own rise to becoming a billionaire and founder of several multi-billion dollar companies as proof of meritocratic systems’ superiority over need-based ones.
Ramaswamy has also proposed the use of military force at the border to prevent illegal crossings. Other people have criticized Ramaswamy’s reasoning and said that even among Indians, there are many living in the US without proper documentation.
The former Governor of South Carolina is also the daughter of immigrants, yet favors tough immigration policies similar to the other Republican candidates. If elected, she promised to put an end to all border-area immigration until reforms are enacted. She is opposed to the idea of separating families, but claims that neither Republicans nor Democrats did enough to prepare for the end of Title 42.
When she was governor of South Carolina, Haley also enacted policies similar to DeSantis’, including requiring businesses to conduct background checks on the immigration status of potential employees.
What the future holds for immigration in the US is yet to be seen. There are many factors involved, only one of which is who wins the presidential election in 2024. Geopolitical changes in the home countries of potential migrants, climate change, and other factors will all play a role in the numbers of people who attempt to enter the country. What is almost certain, however, is that if any of the Republican candidates for president end up winning next November, there will again be major changes to the system.