USA: The Right-Wing Dream of ‘Self-Deportation’

Of interest:

In his presidential campaign, Donald Trump has doubled down on bashing migrants crossing the southern border. They are criminals who are “poisoning the blood of our country,” he says. The Republican National Convention was full of talk of surging “migrant crime,” even though such a rise does not exist. 

The number of Americans who think the immigration level is too high has sharply risen since the last presidential contest in 2020, and as Americans move to the right on the issue, Trump plans to go much further than President Biden’s executive order in June, which closes the border when crossings surge. Trump has said he would build “vast holding facilities” — detention camps — to lock people up as their cases progress; end birthright citizenship, even though the Constitution protects it; and bring back a version of the travel ban from his first term, which barred visitors from several mostly Muslim countries. Another Trump promise, mass deportations, hasn’t been tried since the 1950s; now, polls show majority support for it, including among Latinos.

But there is one anti-immigration proposal on the right that Trump doesn’t talk about publicly. It’s a spin on “self-deportation.” The term — for provoking immigrants to leave of their own volition — has gone out of fashion but the idea continues to lurk. This time, instead of directly pressuring undocumented adults to flee, some immigration opponents are threatening access to school for their children. It’s a nuclear option — requiring the reversal of a Supreme Court ruling that has been a linchpin of educational rights for four decades — that some of Trump’s allies on the right are quietly building support for.

In February, the Heritage Foundation, a right-wing Washington think tank that’s become central to mapping out policy objectives for the next Republican administration, recommended requiring public schools to collect data on immigration status when students enroll. Heritage also said schools should charge tuition for children who are undocumented or who have a parent who lacks legal status.

About 600,000 undocumented children live in the country, and another 4.5 million have a parent who is here illegally. To ensure that parents can send their children to school without fear of immigration agents, the Biden administration declared in 2021 that U.S. Immigration and Customs Enforcement could take no actions of any kind at schools and other locations where young people gather, like universities and day care centers. It’s easy to see why schools are such a sensitive site of immigration enforcement. Barring children from the classroom punishes them for their parents’ decisions and disrupts families’ daily rhythm. Most searingly, perhaps, it undermines the hope of bettering the lives of the next generation — a reason for coming to the United States in the first place.

It has always been difficult to deter people from migrating to the United States, given instability in their home countries and the lure of economic opportunity at American businesses that depend on cheap labor. But there is a grim logic to the strategy of keeping children out of school in the United States — that if you go so far as to take away a right fundamental to the American dream, people will leave.

The Long Shadow of Prop. 187

During the 2012 presidential campaign, the Republican Mitt Romney was roundly mocked for saying that the solution for illegal immigration was to encourage people to “self-deport” rather than for the government to remove them. Newt Gingrich, the former Republican House speaker, called the idea a “fantasy.” Trump, then the host of “The Apprentice,” called the notion “crazy” and claimed it cost Romney the Latino vote — and the election.

But the concept is an old one, dating back to at least the 19th century. In 1882, Congress passed the Chinese Exclusion Act, the first law to bar the entry of workers based on their nationality. For decades afterward, people in segregated Chinatowns lived in the shadows, shuttering businesses, ducking corrupt immigration officers and hiding from mobs. “From 1890 to 1920, a period of mass migration from all over the world, the Chinese population in the United States declined by more than 40 percent,” the historian Adam Goodman wrote in his journal article “The Long History of Self-Deportation.”

A century later, states introduced policies designed to motivate immigrants to move elsewhere. Proposition 187, a proposal to bar undocumented people from using social services, including public health care and education, went on the ballot in California in 1994. A satirical group, Hispanics Against Liberal Take Over, started calling for the self-deportation of all undocumented immigrants in joke ads during the campaign.

Within days after Prop. 187 passed, a federal judge found the law unconstitutional and prevented it from going into effect. Nonetheless, researchers saw immediate, measurable impacts. One study showed that undocumented patients in California with tuberculosis were far more likely to delay seeking care. “Life as an undocumented immigrant is so delicate when it comes to interacting with public institutions,” said Tom K. Wong, a political science professor and founding director of the U.S. Immigration Policy Center at the University of California, San Diego. “The chilling effects are broad.”

The results of Prop. 187 drew the interest of Kris Kobach, then a law professor who pushed for states to play a greater role in immigration enforcement. In 2008, Kobach published an influentialarticle titled “Attrition Through Enforcement” that praised a new Arizona law requiring employers to verify the legal status of workers. He argued that while most “garden-variety illegal aliens” could easily live and work in the United States, they began “self-deporting by the thousands” from Arizona. As a result, Kobach noted, costs dropped for Arizona public schools. He acknowledged that some people were moving to neighboring states but claimed that many returned to Mexico.

In 2011, Kobach became Kansas’ secretary of state. Because of his legal expertise, he was tapped to help write an Alabama bill with the harshest set of immigration restrictions in the country at the time. The law included a mandate that schools collect data on citizenship and immigration status when students enroll, as Heritage now proposes. The Monday after the Alabama bill passed, school officials reported, thousands of students didn’t attend school. Absentee rates remained high. Families fled the state. “It was like a disease,” the owner of a grocery store in Albertville toldNBC News. “Everyone was panicking and leaving.”

Kobach celebrated. “It’s self-deportation at no cost to the taxpayer,” he said.

Though other parts of Alabama’s law were enforced for a time, after only a few weeks, a federal appeals court blocked the provision that required schools to ask about students’ immigration status. This ruling rested on a Supreme Court decision from 1982, Plyler v. Doe, a high-water mark for judicial protection of civil rights. Plyler isn’t nearly as famous as Brown v. Board of Education, the 1954 case that called for the desegregation of public schools. But in the current political landscape, Plyler is both increasingly significant and increasingly vulnerable.

The case began in 1977, when Tyler Independent School District in Texas expelled dozens of undocumented children after the state cut funding for those students. Alfredo Lopez, who was 10 at the time, was one of the students sent home. His family joined four others who sued the state. They went to their first court hearing with their car packed, ready to flee if immigration agents forced them to do so.

But the families won in the lower courts. Texas appealed to the Supreme Court. At oral arguments, the state’s lawyer argued that by blocking funds for their education, Texas “prevents a substantial number of these children from coming in,” which would in turn save the state more money. In other words, the state could refuse to pay for school to create the conditions for self-deportation.

In a 5-to-4 decision, the court rejected Texas’ appeal based on the promise of equal protection in the 14th Amendment of the Constitution. “Directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice,” Justice William Brennan wrote for the majority. “Education has a fundamental role in maintaining the fabric of our society.”

‘The Times Are Different’

Today, there’s a clear path for challenging the precedents of a previous, more liberal era of the Supreme Court. Heritage spelled it out in February: If a state were to require schools to collect data on students’ immigration status or to charge tuition to immigrant families, “such legislation would draw a lawsuit from the left, which would likely lead the Supreme Court to reconsider its ill-considered Plyler v. Doe decision,” the Heritage document said.

The same tactic led to the end of Roe v. Wade in 2022.

The Supreme Court’s conservative majority could follow the script in Chief Justice Warren Burger’s dissent in Plyler in 1982: “Were it our business to set the nation’s social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children — including illegal aliens — of an elementary education,” Chief Justice Burger wrote. “However, the Constitution does not constitute us as ‘Platonic guardians,’ nor does it vest in this court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom’ or ‘common sense.’”

If the Supreme Court were to overturn Plyler and allow states to revoke access to public school for undocumented children, it would fall to legislatures to enact such policies. Many states have constitutions or laws that grant a right to public education, and some would not block children from going to school simply because it is cruel. That makes it far more likely that immigrants would move to one of those states rather than leave the country altogether. But that may be sufficient for some politicians.

When he ran for re-election two years ago, Greg Abbott, the governor of Texas, talked about mounting a challenge to Plyler v. Doe. “I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different,” he said on a conservative radio program, according to The Austin American-Statesman. A bill along those lines died in the Texas Legislature in 2023. But a proposal to end paying for the enrollment of undocumented children in public schools, posed to voters on the ballot for the Republican primary in Texas in March, had more than 87 percent support.

Heritage is trying to build support for its proposals by focusing on the cost of educating immigrant children. The organization says that enrolling the minors who crossed the border without authorization in 2023 would cost $2 billion a year. (Some of those minors work, despite child labor laws, and may not attend school.) Repeating that number at a House subcommittee hearing in June, Representative Aaron Bean, Republican of Florida, said that educating undocumented children was “wreaking havoc on our school systems across America.”

If such attacks succeed in a second Trump term, it will be a measure of how the political climate has shifted. In 2017, Stephen Miller, a hard-right immigration opponent and Trump adviser, pushed for the Education Department to issue a guidance memo telling states that in spite of Plyler, they could block immigrant children from attending public school, according to Bloomberg News.

Betsy DeVos, then the secretary of education, “would never consider” issuing such a memo, a spokesperson for the department said at the time. So Miller’s plan died. But DeVos, who resigned citing Trump’s role in the Jan. 6, 2021, attack on the U.S. Capitol, has little chance of serving in a second Trump term. Miller, however, is poised to play a prominent role. Last fall, the Trump campaign referred reporters’ questions about Trump’s second-term immigration agenda to Miller. He promised a “blitz” of restrictions that he expected to be challenged in court — the route to challenging Plyler.

Will the argument for self-deportation have more success in 2024 than it did when Mitt Romney suggested it? Alabama wound up watering down its 2011 restrictions in part because of an outcry from businesses about the loss of workers. Crops rotted in the field. Investment in the state stalled. Depriving children of education would unleash real effects, on them and their families, and over time perhaps on economic prosperity. It’s the kind of policy that all but the harshest immigration opponents might come to regret.

Source: The Right-Wing Dream of ‘Self-Deportation’