Policy Paper: The Democratic Senate Immigration Disaster

Policy Paper: The Democratic Senate Immigration Disaster

July 12, 2018
Newt Gingrich

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I. PROPOSITION

The victory of the radical wing of the Democratic Party over the progressive wing is creating a policy environment which, if thoroughly understood by most Americans, would lead to a catastrophic Senate election this fall for Democrats.

II. CAMPAIGNS MATTER

Campaigns matter. In July 1994 you could not have predicted that the Democratic Speaker from Spokane, Ways and Means Chairman from downtown Chicago, and the Judiciary Committee chairman from the Houston suburbs, would all be defeated along with a loss of 50 other seats.

In January 2016 you could not have predicted that Trump would defeat 16 more politically experienced Republican candidates for the nomination, and then win the general election by carrying Pennsylvania, Michigan and Wisconsin. In fact, those two steps seemed so unlikely you would have made a fortune betting on them.

The elite media is so biased that it is artificially propping up an increasingly radical Democratic Party while artificially suppressing the issue popularity of the Trump team.

The key purpose of the fall 2018 Republican Senate campaign is to communicate how totally unacceptable the radical views are and how radically they would change America if they could.

III. POPULAR VIEWS: REVIEWING CURRENT POLLS

It is easy to forget how big the gap is between the elite media’s increasingly radical views and the American people. The emotional intensity and the pervasiveness of their repetitive coverage create an echo chamber which Republicans can safely ignore. That echo chamber is a trap for radicals to go further and further away from the American people.

After all of the media’s effort to redefine immigration on their radical terms, consider the views of the American people.

ON VIRTUALLY EVERY ASPECT OF IMMIGRATION POLICY THE AMERICAN PEOPLE ARE MUCH CLOSER TO TRUMP THAN TO THE RADICALS

Only the news media bias and unending focus on their warped version of reality keeps this from becoming overwhelming.

Byron York’s Washington Examiner article, “Donald Trump’s mainstream immigration policy,” makes clear how deep of a minority the radicals are. Remember, media noise and popularity are not the same thing.

York focuses on the Harvard-Harris Poll conducted by Mark Penn (hardly a Republican) from June 24-25.

“Penn began… ‘Do you think that people who make it across our border illegally should be allowed to stay in the country or sent home?’ Sixty-four percent (83 percent of Republicans, 47 percent of Democrats, and 66 percent of independents) said they should be sent home. Thirty-six percent said they should be allowed to stay.”

“Then, Penn asked: ‘Do you think that parents with children who make it across our border illegally should be allowed to stay in the country or sent home?’ The presence of children made little different in the result: 61 percent (81 percent of Republicans, 40 percent of Democrats, and 66 percent of independents) said they should be sent home, while 39 percent said they should be allowed to stay.”

Penn wrote in an email to York, “[T]hey want people who cross the border illegally to be turned around and returned home efficiently.”

Citing the poll, York writes in the article, “The end result was that a substantial majority said illegal border crossers, and the children they brought, should be returned to their home countries. To that end, 80 percent (84 percent of Republicans, 79 percent of Democrats, and 78 percent of independents) favored hiring more immigration judges ‘to process people in custody faster.’”

To illustrate how wrong the radical Democrats are, at a time when President Trump is demanding more enforcement and they are calling for the abolition of U.S. Immigration and Customs Enforcement (ICE), “Penn asked, ‘Do you think we need stricter or looser enforcement of our immigration laws?’ Seventy percent (92 percent of Republicans, 51 percent of Democrats, and 69 percent of independents) said stricter, while 30 percent said looser.” A 70-30 percent split should be enough for a Republican landslide if pushed hard enough.

Penn’s survey helps unlock the language of “the wall”. The wall as such does not score well partially because it is President Trump’s issue and partially because the inflexibility sounds expensive and wrong to many people.

However, President Trump’s underlying instinct that Americans want the border secured is more than validated by Penn’s data, that concluded, “Sixty-one percent (73 percent of Republicans, 49 percent of Democrats, and 60 percent of independents) said current border security is inadequate.”

However, the language people support is more nuanced than just “the wall.”

“Penn asked whether respondents ‘support or oppose building a combination of physical and electronic barriers across the U.S.-Mexico border.’ Sixty percent (92 percent of Republicans, 39 percent of Democrats, and 54 percent of independents) supported the barriers, while 40 percent did not.”

Simply describing the combination of physical and electronic barriers moves controlling the border to a 60-40 winning issue.

THE SANCTUARY CITY OPPORTUNITY

Radical Democrats support for sanctuary cities (and any Democrat who supports sanctuary cities is a radical) is deeply unpopular.

York writes in the Washington Examiner article, “Penn’s polling also found overwhelming opposition to sanctuary cities. He asked: ‘Should cities that arrest illegal immigrants for crimes be required to notify immigration authorities they are in custody or be prohibited from notifying immigration authorities?’ Eight-four percent — a huge number comprised of 94 percent of Republicans, 76 percent of Democrats, and 83 percent of independents — said that cities should be required to notify immigration authorities. Just 16 percent said cities should be prohibited from doing that.’”

Ending sanctuary cities is an 84-16 issue. This is something that the House and Senate should vote on as often as possible.

“Penn also tested the Democratic talking point that eliminating sanctuaries would actually increase crime. He asked the question this way: ‘Do you think notifying immigration authorities when people are arrested for crimes increases crime because it makes immigrants less likely to report crimes or it decreases crime because it takes criminals off the streets?’ Sixty-four percent (65 percent of Republicans, 62 percent of Democrats, and 64 percent of independents) said it would decrease crime, while just 36 percent said it would increase crime.”

So, by 64-36, Americans believe sanctuary cities increase crime. Again, an example of why this should have hearings and be voted on over and over this fall.

“ABOLISH ICE” IS A TRAP FOR DEMOCRATS

The “Abolish ICE” campaign is a trap for Democrats. Citing Penn’s Harvard-Harris Poll, York wrote, “Sixty-nine percent of those surveyed (78 percent of Republicans, 59 percent of Democrats, and 73 percent of independents) said ICE should not be abolished, while 31 percent said it should.”

THE TRUMP PLAN IS ACCEPTABLE TO MOST AMERICANS

As York reported, “Penn found widespread support for the fundamental provisions of the immigration bills, based on Trump’s ‘four pillars,’ that were recently rejected by the House of Representatives. ‘Would you favor or oppose a congressional deal that gives undocumented immigrants brought here by their parents work permits and a path to citizenship in exchange for increasing merit preference over preference for relatives, eliminating the diversity visa lottery, and funding barrier security on the U.S.-Mexico border?’ Penn asked. Sixty-three percent (66 percent of Republicans, 63 percent of Democrats, and 59 percent of independents) supported the plan, while 37 percent opposed.”

“’Overall, Americans want to show compassion for those that are here, but want much tougher enforcement of immigration laws,’ Penn told [York]. ‘They want to solve the problem of illegal immigration, not keep kicking the can down the road.’”

THE CONSISTENT SCALE OF THE IMMIGRATION MAJORITY

Just to drive home how clear the American people are, and how great the opportunity to expose and defeat radical Democrats is, I’ve included the attached chart with the results of the Penn poll. The radical Democratic side is on the left, and the Republican side is on the right.

As you can see, we range from a high of 84 percent to low of 60 percent for our immigration positions.

IV. THE FEINSTEIN OPEN BORDER BILL DISASTER: CREATING THE OPPORTUNITY FOR DISASTROUS DEMOCRATIC SENATE LOSSES

Given the overwhelming views of the American people, it is amazing that Senator Feinstein could have introduced an open borders bill and gotten every Democrat in the Senate to cosponsor it. Given the numbers in the Penn survey, there is probably no state in the United States, not even California, where anything close to a majority would favor an open borders bill.

In all likelihood, one or more radical staffers probably drafted this bill in the hysteria of the media assault on the children detention issue. They wrote to their radical friends and allies that this was a clever bill.

If Senate Republicans are prepared to drive home the problems in this bill, they may put into play Democrat-held seats which would normally seem out of reach. Just as 1994 involved challenging Democrats who had seemed unbeatable, the 2018 immigration choice between security and radical open borders may endanger members who would normally seem unbeatable.

Every Republican challenger should get a copy of the Feinstein bill and carry it to every event, every press conference, and every debate. The Democrat should be forced to explain why they agreed to cosponsor such a disastrous bill.

A number of them went out of their way to indicate their support for the Feinstein bill:

Senator Tammy Baldwin (WI), 6/8/18: “This legislation restores a humane approach that respects individuals seeking asylum in our country and ensures children and parents are not separated at our border.”

Senator Sherrod Brown (OH), 6/17/18: “ I joined @SenFeinstein’s bill last week to keep children and parents together.”

Senator Joe Donnelly (IN), 6/17/18: “I’ll be cosponsoring the Keeping Families Together Act.”

Senator Heidi Heitkamp (ND), 6/17/18: “I’m cosponsoring the Keep Families Together Act.”

Senator Joe Manchin (WV), 6/18/18: “ today I am signing onto the Keep Families Together Act”.

Senator Tina Smith (MN), 6/14/18: “I am a proud cosponsor of Senator Dianne Feinstein’s Keep Families Together Act”.

Senator Debbie Stabenow (MI), 6/14/18: “The situation on the border is cruel and hearbreaking. I am a cosponsor of @SenFeinstein’s must-pass bill.”

Senator Claire McCaskill (MO), 6/18/18: “[she] has announced her support for the Keep Families Together Act.”

Senator Jon Tester (MT), 6/17/18: “ I’m cosponsoring the Keeping Families Together Act.”

Senator Bill Nelson (FL), 6/8/18: “’We must return to our true American values by treating those seeking asylum with dignity and respect and keeping families together.”

Senator Bob Menendez (NJ), 6/8/2018: “[Senator Menendez] joined Sen. Dianne Feinstein (D-Calif.) and 29 other Senate Democrats in announcing introduction of legislation.”

If the Republicans are prepared to slow the campaign down and focus on this issue, they have the facts to back them up.

Attorney Gabriel Malor wrote a stunning analysis of the Feinstein bill for The Federalist.

The essence of the Malor analysis is simple: “Democrats’ proposed legislation to prohibit so-called border separations would actually prevent federal law enforcement agencies almost anywhere inside the United States from arresting and detaining criminals who are parents having nothing to do with unlawfully crossing the border and seeking asylum.”

Malor writes, “Every Senate Democrat has now signed on to cosponsor a bill written so carelessly that it does not distinguish between migrant children at the border and U.S. citizen children already within the United States. The bill further does not distinguish between federal officers handling the border crisis and federal law enforcement pursuing the ordinary course of their duties.”

Virtually every state is directly affected. Note Malor’s destruction of the “limited” nature of the bill as he asserts, “’[A]t or near the port of entry or within 100 miles of the border’ does not meaningfully limit the geographic scope of this bill. That area includes almost the entirety of the geographical territory of the United States and the vast majority of people living in it. Two hundred million people live within 100 miles of the border. That’s roughly two-thirds of the U.S. population. Even more live near ports of entry, including in places far from the border crisis, like Salt Lake City, Utah (nearly 700 miles from the nearest border crossing), Tulsa, Oklahoma (more than 600 miles from the nearest border crossing), and Nashville, Tennessee (nearly 600 miles from the nearest border crossing). All major U.S. metropolitan areas fall within either 100 miles of the border or are near a port of entry or both.”

With the permission of Gabriel Malor, Ben Domenech, and The Federalist, I have added Malor’s entire article as an appendix at the end of this paper.

Malor’s analysis provides all of the ammunition that any candidate needs to win a debate with a Democrat who cosponsored the open borders Feinstein bill without having analyzed how bad it really is and how opposed the American people will be.

We also need a media campaign to drive home that every single Senate Democrat came out for an open borders bill. Remember by 70-30 Americans want stricter, not looser enforcement. A true open borders bill might be in the low 20s in support.

V. OPEN BORDERS AND THE RADICAL DEMOCRATS

Congressman Keith Ellison, Deputy Chair of the Democratic National Committee and candidate for Attorney General of Minnesota last month had a nice picture of him wearing a T-shirt that said, “I don’t believe in borders.” Let him try to explain that outside downtown Minneapolis

Penn’s Harvard-Harris poll found that only 36 percent of Democrats say they want open borders.

The abolish ICE campaign will rapidly become an open border issue, because without enforcement, there will inevitably be open-ended illegal migration.

The Democrats cannot win on these issues if Republicans have the courage to ignore the elite media and focus on the American people.

VI. APPENDIX:

Democrats’ Border Separation Bill Would Let Nearly All Parents Who Commit Federal Crimes Get Off Scot-Free
Gabriel Malor
The Federalist
June 19, 2018

Every Senate Democrat has signed on to cosponsor a bill written so carelessly that it does not distinguish between foreign children at the border and U.S. citizen children.

Democrats’ proposed legislation to prohibit so-called border separations would actually prevent federal law enforcement agencies almost anywhere inside the United States from arresting and detaining criminals who are parents having nothing to do with unlawfully crossing the border and seeking asylum.

Every Senate Democrat has now signed on to cosponsor a bill written so carelessly that it does not distinguish between migrant children at the border and U.S. citizen children already within the United States. The bill further does not distinguish between federal officers handling the border crisis and federal law enforcement pursuing the ordinary course of their duties.

Let’s break down Sen. Dianne Feinstein’s proposed “Keep Families Together Act” to see where Democrats went wrong. The bill provides that “[a]n agent or officer of a designated agency shall be prohibited from removing a child from his or her parent or legal guardian at or near the port of entry or within 100 miles of the border of the United States” (with three exceptions to be discussed later). Four immediate warning signs in this provision should put the reader on notice that this bill is not what Democrats claim.

First, “designated agency” here is defined as the entirety of the federal departments of Homeland Security, Justice, and Health and Human Services. The scope of the bill is not limited to those portions of these departments involved with the border crisis, and there is no other limiting factor in the bill that would cabin the prohibition on family separation to immigration-related matters. In other words, this bill is going to regulate conduct across a great many federal offices that have nothing to do with separating children from families arriving unlawfully in the United States.

Second, “agent or officer” is not defined by the legislation, except to say that it includes contractors. Federal law, however, already defines “officer” to include (with exceptions not relevant here) every federal employee appointed to the civil service by the head of an executive agency and ultimately overseen by the head of an executive agency.

Here again, this bill is not limited to controlling the behavior of the DHS, DOJ, or HHS officers involved in the border crisis. The proposed law would apply with equal force to, say, FBI agents (part of DOJ), Secret Service agents (part of DHS), and Centers for Disease Control officers (part of HHS) in the exercise of their everyday duties.

Third, “at or near the port of entry or within 100 miles of the border” does not meaningfully limit the geographic scope of this bill. That area includes almost the entirety of the geographical territory of the United States and the vast majority of people living in it. Two hundred million people live within 100 miles of the border. That’s roughly two-thirds of the U.S. population. Even more live near ports of entry, including in places far from the border crisis, like Salt Lake City, Utah (nearly 700 miles from the nearest border crossing), Tulsa, Oklahoma (more than 600 miles from the nearest border crossing), and Nashville, Tennessee (nearly 600 miles from the nearest border crossing). All major U.S. metropolitan areas fall within either 100 miles of the border or are near a port of entry or both.

Finally, “child” is defined in this legislation as any individual who has not reached 18 years old who has no permanent immigration status. This astonishing definition includes U.S. citizens under the age of 18. Citizen children by definition have no immigration status, permanent or otherwise. (Even if the Democrats belatedly amended this provision to restrict the definition to alien children without a permanent immigration status, that amended definition would still include non-migrant aliens, like tourist children, Deferred Action for Child Arrivals recipients under the age of 18, and children whose parents have had their immigration status revoked.)

Thus, far from addressing the border crisis, the Democrats’ Keep Families Together Act applies almost everywhere in the country to prohibit any DHS, DOJ, or HHS officer from removing almost any child from a parent. The listed exceptions to the prohibition—a state court authorizes separation, a state child welfare agency determines that the child is in danger, or certain DHS officials establish that the child is a victim of trafficking or is in danger from the parent, or that the parent is not the actual parent of the child—are completely unrelated to the vast majority of DHS, DOJ, and HHS enforcement activity.

Two groups would not benefit from the prohibition on family separation in this bill. First, parents who have children with a permanent immigration status go unprotected. Additionally, the childless would obviously find no shelter from this legislation. This disparity in treatment for the childless and lawful permanent residents borders on the farcical.

The ridiculous consequences of passing the Democrats’ hastily written mess are easily demonstrated. Let’s say FBI agents hear about a drug trafficker and murderer in Buffalo, New York. The agents get a warrant to raid the drug trafficker’s house and arrest him. While they do so, they discover the drug trafficker’s minor daughter is home with him. Feinstein’s bill would prohibit the FBI agents, while arresting a drug trafficker, from separating this child from her father.

This is not a farfetched hypothetical. FBI agents are agents of DOJ (a designated agency) and Buffalo is within 100 miles of the border. So long as the daughter is either a U.S. citizen or an alien without permanent status, the FBI agents would be unable to proceed with normal law enforcement activities. The agents would be forced to choose between booking the drug trafficking murderer into jail with his daughter or not booking him into jail at all.

Panicky lawmaking often produces absurd results, and this one presents law enforcement with the choice between keeping children with their criminal parents while prosecuting them almost anywhere in the United States and for any crime whatsoever, or not prosecuting criminal parents at all. The legislation is not limited to unlawful entry prosecutions, to migrants, or (absent amendment) even to alien children.

A more honest method of ending unlawful entry prosecutions—and the family separations that ensue—would be to repeal 8 U.S.C. § 1325, which criminalizes unlawful entry in the first place. That would at least have the benefit of not curtailing federal enforcement of every other criminal law on the books for parents who keep their children close.

At a minimum, Democrats’ proposed legislation is the consequence of extremely careless and hurried drafting. If this is actually what Democrats intend to do—and every Democratic senator has now signed on—it is a monstrous attack on law and order. If enacted, this bill would turn federal law enforcement upside down in the name of protecting relatively few unlawful border crossers from being prosecuted. This sloppiness is a prime example of why Democrats are unserious about outcomes and unfit to govern when the emotional stakes get high.

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