Wednesday night’s debate exposed a stark fundamental divide within the Democratic Party on immigration policy.
You could be excused for missing it, however, as a rather vital argument between presidential contenders came shrouded in a blizzard of shorthand jargon, the natural product of politicians in an intense first tilt between presidential contenders.
Nevertheless, credit former Housing and Urban Development (HUD) Secretary Julián Castro (D) for forcing the dispute into the spotlight – or perhaps for even making the law known to immigration wonks as “section 1325” a subject of dispute at all.
Passed in 1929 and never seriously questioned or modified since, the statute is a vital tool which currently serves as the crucial fulcrum of President Donald Trump’s family separation policy. Castro has planted a flag on the 90-year-old law in his aggressive immigration plan.
On Wednesday night, it divided the stage into two camps: One led by Castro, the other fronted by former Democratic Texas Rep. Beto O’Rourke.
As Sen. Cory Booker (D-NJ), New York City Mayor Bill de Blasio, and O’Rourke lamented the shocking viral photograph of a migrant father and his young daughter lying dead at the bank of the Rio Grande, Castro drove the conversation toward a specific and creative policy maneuver that would greatly decrease the deadliness of migrants’ journeys.
What if – Castro asked his colleagues – the United States stopped treating illegal entry into the country as a crime?
Castro has made this idea the centerpiece of his sweeping immigration plan. By repealing the statute that makes illegal entry a federal misdemeanor – “terminating” section 1325, as he put it on stage – his plan would fundamentally reshape the dynamics of undocumented immigration, both for the government and for those who seek to come into the U.S. from abroad.
Castro’s idea would make illegal entry a purely civil matter. An immigration judge could still order a person deported based on a proven civil violation for illegal entry. Moreover, criminal laws against trafficking human beings or illicit goods through the border would remain in place.
But families entering together could not be forcibly separated on the grounds that the adults had committed a federal crime. As such, men like Oscar Alberto Martinez Ramirez might have substantially less reason to take the dangerous route where he and his daughter drowned last week. If migrants knew that being caught crossing the border would not trigger the break-up of their families, and that they’d be treated more like a jaywalker than a burglar, the risk-reward calculus around how to go about reaching U.S. territory would change.
Sen. Elizabeth Warren (D-MA) has already embraced Castro’s call for decriminalizing border-crossing and ending 1325. Booker, too, is a fan.
O’Rourke, though, wasn’t having it. And the precise nature of his response to Castro’s dogged pressing for a straight yes-or-no on 1325 provides an early indication of how intra party disagreements over countering Trump’s exploitation of modern xenophobia and nativism will play out in this primary.
O’Rourke began his own answer by promising, in Spanish, to “treat every person with the respect and dignity they deserve as human beings,” before proceeding to differentiate between those migrants an O’Rourke administration would welcome – “any family fleeing violence” or individual with a solid asylum claim – and the rest. He’d look to invest in stabilizing the societies of central America “so there is no reason to make that 2,000 mile journey to this country,” O’Rourke said.
Castro prodded O’Rourke from off-camera throughout his answer, repeatedly pointing out that O’Rourke’s impassioned, bilingual call to stop caging kids and splitting up families would be undermined in practice by his refusal to embrace 1325 repeal.
“But your policy would still criminalize a lot of these families,” Castro said.
The needling induced the moderators to allow each person additional time to unpack their dispute. O’Rourke reiterated his preference “that we don’t criminalize those who are seeking asylum.”
“I just think it’s a mistake, Beto,” the former HUD secretary said, his tone softening momentarily as he addressed his fellow Texan by his given name for the first time. “I think that if you truly want to change the system then we gotta repeal that section. If not, then it might as well be the same policy.”
After being hounded around the point for nearly five full minutes, O’Rourke finally found an escape hatch. Accusing Castro of taking a small-minded approach to the issue, O’Rourke suggested, “You’re looking at just one small part of this [while] I’m talking about a comprehensive rewrite of our immigration laws.”
“That’s not true,” Castro said, his voice rising in apparent frustration at the suggestion that retaining the criminal statute for non-asylee migrants is the mark of higher-level thought or planning.
But O’Rourke’s invocation of the “comprehensive” label had won a burst of applause from the audience, and the former congressman leaned into the momentary advantage.
“I don’t think it’s asking too much for people to follow our laws when they come into this country,” O’Rourke said over Castro. “If we apprehend a known smuggler or drug trafficker, we’re going to make sure they are deported from our country.”
Castro’s plan would make perfectly sure of that too, of course. But the moderators swiftly looked to broaden the discussion to include some of the other eight people on stage. Rep. Tim Ryan (D-OH) affirmed elements of each man’s position, former Maryland Rep. John Delaney (D) tried to get a word in about closing the opportunity gaps that drive migrants to come north, and Gov. Jay Inslee (D-WA) reminded the viewers of his own aggressive stewardship of immigrants’ interests in his state.
For those five minutes, though, a long-standing quandary within the Democratic Party — over which types of immigrants should be welcomed, which should be gently discouraged — was out in the open.
Some in the party might have thought the contentious politics of immigration reform that dogged former President Barack Obama’s own deportation push would dissipate now that Trump presents an obvious and common enemy. Wednesday proved that notion foolish.
The topic ultimately received 15 minutes of stage time, more than twice the space moderators eventually made for a briefer discussion of climate policy.
One detail that seems likely to resurface if Castro can keep the question centered in the primary for a while longer, however, is the fact that 1325 was the brainchild of a proud racist.
The late South Carolina Democrat, Sen. Coleman Blease, designed the language making unauthorized entry to the United States a criminal rather than civil offense. Blease, as it happens, had something of a penchant for such policy proposals.
“Whenever the Constitution comes between me and the virtue of the white women of the South, I say to hell with the Constitution,” Blease said in a 1912 speech in defense of lynchings.
A year prior, during his inauguration as governor, he proclaimed himself “opposed to white people’s taxes being used to educate negroes.” In 1928, Blease submitted a constitutional amendment barring interracial marriage.
After President Herbert Hoover invited a black congressman to the White House for dinner in June 1929, Blease took to the U.S. Senate floor to read a poem titled “N****** In The White House.”
Earlier that same year, Blease made his most lasting personal mark on U.S. policy. Congress passed his legislation criminalizing border-crossing in March of ’29. The year that the Great Depression broke out was also a time when xenophobia and isolationism peaked in the national consciousness — and not just toward migrants heading north into the country. The state of Massachusetts had just killed Nicola Sacco and Bartolomeo Vanzetti a couple years prior, following a notoriously crooked trial centering on the Italian immigrants’ anarchist political views. Congress had introduced strict quota caps on immigration from European countries less than a decade earlier, and shrunk them even further in 1924.
Blease’s law was vigorously enforced for a few years before state and federal security services began to prioritize other matters in the depths of the Depression. A dozen years later, as the U.S. entered World War II, federal policy would veer in the opposite direction with the enactment of the “bracero program” that actively imported some 5 million laborers from Mexico over two decades.
Such see-sawing of federal policy toward migrants has continued over the decades that followed, of course. Blease’s legislation proved so useful to the periods of xenophobic retrenchment that it became part of the tapestry of legal assumptions around immigration policy even among the more liberal-minded generations that have fought back against nativist reactionaries.
This story has been updated.