We can't keep playing hot potato with the southern border

The explanation for Congress’ inaction aren’t hard to understand. As on so many other issues, it’s easier to defer to the executive branch and the courts than to risk taking an unpopular stand. The combination of intentional gerrymandering and voluntary residential sorting also helps. With Congressional districts increasingly homogeneous, members of Congress have to worry more about primary challenges from party and ideological extremes than they do about satisfying the median voter. Legislators with long memories also recall the failure of the Comprehensive Immigration Reform bills of 2006. Despite strong support among the bipartisan elite, the measures foundered on opposition from conservatives, who believed the proposal made legal status too easy and doubted that the enforcement provisions would ever be realized.

No deal is sometimes better than a bad one. On immigration, though, legislative failure has led to the worst of both worlds. Looking for elusive center ground, Barack Obama stepped up deportation of illegal immigrants who committed crimes and extended legal protection to so-called “Dreamers” brought the US as minors and migrants from Haiti and other countries where he deemed return too dangerous. Use of those discretionary powers helped provoke the backlash that was central to Trump’s 2016 campaign. Yet, existing law didn’t grant Trump unequivocal authority to keep his promises to ban Muslims or seal the border. So he too relied on administrative workarounds, like the original Title 42 directive, that are vulnerable to litigation on procedural grounds as well as to reversal by successors in office.

The result is a permanent crisis that already helped end one administration (remember the “family separation policy”?). With Biden’s signature combination of ineptitude and bad luck, it may help end another. That’s a feature, not a bug, for the activists, ideologues, and strategists who know that oscillating panics about draconian enforcement and open borders drive clicks, donations, and votes. But Americans and immigrants alike deserve clear rules set by elected representatives in open votes–the way important choices are supposed to be made. Only Congress can make that happen.