We’ve been down this road before, and we survived it. We know the playbook. Some are referring to the next administration as Trump 2.0. Dare I say, it’s déjà vu all over again?
Although I had a sense over the last couple of months that we would end up where we are today, and although I most certainly do not think this is the end of the world (for a variety of reasons), Donald Trump’s rhetoric on the campaign trail and some of his recent cabinet-level and other administration appointments do give me pause.
The phone calls started immediately the morning after the election. Calls from clients and prospective clients. Leaders of associations and nonprofits. HR directors from companies small and large. All are anxious; some perhaps unnecessarily so. But they’ll keep calling.
So, here’s the message. Immigration attorneys and advocates are ready. We learned a lot during Trump 1.0.[1] We’re resilient. Our clients are resilient too. Very resilient, in fact. We’ll get through the next four years, and whatever comes after that. (And I will tell you, I have no illusion that the Democratic party will fare any better four years from now.) But attorneys, advocates, and the clients we serve are and will be ready.
Our immigration system is badly broken. And yes, the border situation is a mess. I think everyone would agree that immigration reform is needed, from top to bottom. But the politics of how to fix our badly broken immigration system has become unnecessarily complicated (and way too political).
Can we not agree that employers large and small are experiencing labor shortages in almost every sector of the U.S. economy? Can we not also agree that there are factors outside the United States, like persecution and yes, even climate change, that are causing millions of people to leave their own homelands in pursuit of a better life, often here in the United States?
Can we also agree that it is impractical (and candidly way too expensive) to think that we are going to be able to deport north of 10 million (and some would put the number way higher, even double) undocumented individuals who are in the U.S. unlawfully (particularly with the massive backlogs currently in our immigration courts)?
These concepts seem so basic to me. Yet, as always, politics seems to get ahead of common sense. If we’re to believe what we heard from the president-elect on the campaign trail, the plan is to commence a massive deportation effort,[2] and as a result, many businesses are now rightfully concerned (including many of my local friends and clients in the hospitality and horse racing sectors) that this will result in widespread workplace raids. Trump has even suggested involving our military in the effort.
And he seems to be putting together just the team to lead his efforts. Returning in Trump 2.0 is Stephen Miller, who will be White House deputy chief of staff for policy and also the president’s homeland security advisor. Also returning is Tom Homan, a former director at Immigration and Customs Enforcement (“ICE”), who will serve as Trump’s “border czar”.[3]
If we can all agree that there’s a problem, and there is a huge problem, then why can’t we then all work together toward a solution? For example, in the wake of the election, I spoke with two restaurant clients who shared their concerns with me, and also told me that they simply cannot find American workers to be dishwashers. I spoke with some farmers in central New York and the Hudson Valley who told me that they cannot find American workers to perform labor on their dairy farms. I could go on.
In the wake of the election, there’s now a real concern that ICE will again be conducting raids on businesses across the country, likely focusing on those industries who generally do hire undocumented labor.[4] It happened before (including in my own community of Saratoga Springs, New York) during Year 1 of Trump 1.0, and recent reporting suggests that it will happen again.
And while clients have become more creative in what immigration options they may be willing to explore to address their labor needs, it’s not sustainable if the only focus by the new administration will be on enforcement and deporting tens of millions of undocumented immigrants.
I am not at all suggesting that it is OK to knowingly hire undocumented workers, or worse yet, take advantage of them by not paying them a fair wage (or worse yet, withholding their wage by leveraging their situation). But it’s also ridiculous that employers have to make bad choices because the elected officials who were elected to serve them, on both sides of the aisle, have failed to get together any reasonable and comprehensive plan to solve these incredibly important problems.
Speaking of politics, the Democrats of late have done a terrible job of getting their historic and core messages out to their constituents. They come off as elitist and too far on the fringe. And many Republicans have gone way too far to the right. If we could all go back to a time when Democrats and Republicans were closer to the center and away from the fringe, and could work together across the aisle, I think the prospect of implementing comprehensive immigration reform could be much closer to a reality. But alas, I may just be a dreamer.
[1] During the four years of Trump 1.0, there were a stunning number of presidential proclamations and executive orders, myriad changes to departmental policy guidance, and so many other smaller and often less noticed changes (e.g., lengthening the amount of time an asylum seeker had to wait to receive permission to work, asking for far more information from visa applicants).
[2] I recently read that on Day 1, Trump would sign a series of executive orders, fulfilling several campaign pledges, including shutting down the southern border completely.
[3] These two characters can be credited with sowing chaos almost from the get-go the last go around, being the architects of separating migrant and asylum-seeker families seeking protection at the US-Mexico border and the so-called Muslim ban.
[4] See, e.g., https://news.bloomberglaw.com/daily-labor-report/punching-in-employers-brace-for-trump-immigration-raids-audits-28.