A Clumsy Solution Is Better Than None
Trading a symbolic victory for substantive improvement
I’ve been nervously following the crisis at the Texas border. On January 10, the Texas National Guard began denying border patrol access to the Shelby Park area along the Rio Grande in Eagle Pass, Texas. The situation escalated when, on January 12, a mother and her two children drowned near that area in the Rio Grande. Texas National Guard continued to deny Border Patrol access to either investigate or aid in the situation. The first deadline to give Department of Homeland Security (DHS) agents access to this portion of the border was January 17th, which Texas did not make. Then, on January 22, the Supreme Court voted 5-4 that federal agents had the authority to remove razor wire placed by Texas authorities. Again, Texas Governor Abbott did not comply. The DHS set a second deadline, in light of the Supreme Court ruling, to gain access by January 26. Well, that day has come and gone, and federal agents still can’t get in to the Shelby Park area. In addition, 25 states with Republican governors signed a letter of support for Texas governor Abbott on that same day. Florida governor DeSantis also committed to sending an additional 1000 Florida State and National Guard to aid Texas.
I’m not a psychic, so I can’t predict if anything will come of all this, or if it’s all a bunch of political posturing that will work itself out in the next election cycle. But what I do know is that I don’t like that it is now within the bounds of plausible politics (even as mere posturing) to threaten official agents of the federal government with violence in defiance of a Supreme Court decision.
This situation is not only worrying in the abstract as a new norm with potential consequences for U.S. federalism. Also, how the heck is Biden supposed to respond to that? He can try to call Texas’s bluff and order federal agents to take down the barriers. But that risks escalation and, as a potential result, the lives of those agents. Biden could escalate in a number of other ways too, though. He could withhold federal funds from Texas and states like Florida that directly aid in Texas’s defiance of the federal government. A similar strategy forced Louisiana to raise the drinking age to 21 in 1986. He could federalize the Texas national guard and give them an alternative order. Or he could send in the military, as Eisenhower did during school desegregation. But none of these solutions seem to make violence less likely, and they all run the risk of backfiring dramatically in an election year. It is probably better to avoid any actions that bring us even just a little bit closer to the risks associated with armed conflict between the federal government and the states. Personally, I would like to avoid that if at all possible.
Honestly, I don’t necessarily know how to proceed. Abbott has already spent billions of dollars on the border, so perhaps this stunt will prove unpopular even among Republicans who might see it as an indication that Abbott’s policy isn’t working. Or perhaps the recently hashed out bipartisan border security agreement will pass congress and relieve some of the pressure. But I have a hard time swallowing a compromise that doesn’t seem like a compromise at all. Trading increased funding for Israel for just plain making it harder for asylum seekers to get into the U.S. just seems like two things the Republican party wants without Democrats getting anything in return. No, nothing right now seems like a great solution. But how can I expect a good solution from such a crisis?
Immigration and the southern border have long been contentious issues between America’s two major parties. Such issues tend to offer nothing but polarization. It resembles polarizing policy issues like gun control and abortion. On each side of each of these issues are people who have seemingly incompatible values, beliefs, and ideas about the American way of life. How can we possibly reconcile such divergence?
Maybe we can look to other countries to see how policymakers there have thread that needle. For example, why didn’t France’s religious Catholics make abortion as intractable an issue as it has become here in the US? Who was convinced and how? What did the political dialogue look like?
These are sort of trick questions. As much as we might loath to admit it, neither ours nor our opponents' positions on issues like abortion or immigration are the exclusive result of rational analysis of the facts. We probably aren’t talking our way into agreement with one another. Rather, people’s positions on such issues tend to reflect their values, their morals, and their ideas about what makes a just society or a good life. For example, to those who are in favor of various degrees of widespread abortion access the issue might be about gender equality, or bodily autonomy (or both!). But on the other hand, those who want to restrict access to abortions might not care that much about either of those things and may instead be focused on the sacred value of life. They might be more concerned with the moral worth of the fetus as a living being. For the sake of transparency I should mention that I am in the former camp, but that hardly matters here. I am, in either case, committed to solving seemingly intransigent political disagreements in a way that is still democratic. Given that the disagreement is one of world views rather than facts, how should the law deal with it?
What makes this question tricky is that when the state makes a law about abortion, it isn’t just deciding between two positions on a single issue. The losing side isn’t likely to just say “oh darn, I guess we lost this one,” snap their fingers, and move on (as much as we might wish it). This is because the law isn’t just deciding a position, it is affirming one’s world view. A state like New Mexico, with no restrictions on abortion, is fully affirming the world view of the pro-choice side, and thus at the same time indicating that the moral beliefs that underpin their way of life are preferred by the state to those of the pro-life crowd. You may believe that's true, but I hope you can see how such policies make opposition *more* ardent and entrenched than before. No one is going to support a decision that implicitly says that they’ve been living their life wrong.
Quite frankly, at first blush this seems totally intractable. Surely one side must simply win and the other simply lose and the state must use its monopoly on force to ensure that the law is followed. Some might even think that sounds like the correct way to go, assuming they're on the winning side of course. But that need not be the case. We can take a look at France to see how their abortion law simultaneously provided widespread and safe access to abortions, though limited, while still satisfying anti-abortion citizens.
In 1975 France passed a law that had two important factors. First, it legalized abortion up to 10 weeks into the pregnancy. Second, it had a very important requirement. A woman having an abortion would have to certify that the procedure was necessary because of distress or emergency. In doing so, the law simultaneously affirmed the beliefs and worldviews of both groups. Because the law required a certification of necessity, it affirmed the belief of anti-abortion citizens that the fetus does have some degree of rights and we, therefore, have some sort of moral obligation to it. But, because there was no authority to check the woman’s certification of need, pro-choice citizens saw the law as affirming their belief that women, as citizens, have a right to personal autonomy. It also had other provisions to reduce push back against what was, essentially, legalizing a right to abortions. Abortions required a waiting period of one week, during which time the woman seeking the abortion would be counseled on all of the available state support she might have access to were she to change her mind. This reassured anti-abortion citizens that abortion would not be used as a form of birth control. By crafting parts of the policy to respect the moral frameworks and world views of both parties, neither side offered sufficient opposition to continue the impasse and stop the bill.
Essentially, the law gave a symbolic victory to French anti-abortion activists, and a substantive victory to French pro-choice activists. Abortion was legal, and the main barrier was just asking the woman if it was an emergency without forcing her to provide evidence to prove it. And France has been incrementally liberalizing their abortion policy ever since. In 2001 France expanded access to 12 weeks, and then again to 14 weeks in 2022. France is also poised to enshrine abortion as a constitutional right (we’ll likely find out if they succeed this month). Abortions in France are also legal at any point during the pregnancy if the life of the mother is threatened or the fetus isn’t viable. And of course abortions are fully covered by state health care. Furthermore, it proved abortion advocates right in their claim that access to abortion decreases abortion rates, a fact that could not have become relevant to liberalization of abortion until after a compromise policy had already cooled off the issue somewhat.
France’s policy was what Marco Verweij and Michael Thompson call a “clumsy solution.” When politics entails disagreement (and honestly when does it not?) it often feels like the only options are to get stuck in the morass and do nothing or struggle endlessly with an obdurate opposition. But why let the perfect be the enemy of the good? Among the extremists shouting at one another are innumerable reasonable people who just want to be heard. Perhaps we can do better by embracing the conflict, and clumsily navigating our way through the plurality of existing positions to arrive at an imperfect but improved solution?
I know some will argue that Europe is a bad example. Most European countries restricted on demand abortion access more than even the most restrictive states before Roe v Wade was overturned. But that only looks at one factor, when in practice, women in most of Europe have an easier time accessing abortion long after the time limit than American women ever did. And, of course, all that is moot now. That the US was unable to come up with a policy that could satisfy both positions meant that the issue festered until it became totally intractable. Now, doctors in many states, such as Texas, risk potential legal consequences for doing so much as treating a woman having a miscarriage. Whatever the laws used to be, many states now swing from complete denial even in medical emergencies, to unfettered access. So I guess you better hope your job and all the people you care about are in a state with your preferred law.
Maybe it’s too late to come up with a clumsy solution to abortion in the U.S. Even now, though, I don’t think border policy is beyond the help of a similarly positioned law.
When Trump campaigned on building a border wall along the U.S.-Mexico border, a LOT of ink was spilled about why a wall wouldn’t actually work at reducing illegal immigration. Everyone from Rolling Stone to Adam Ruins Everything argued why the wall would be totally ineffective. For one, most people living in the US illegally didn’t come here illegally. They merely overstayed their visa, so a wall wouldn’t have kept them out. Walls can be climbed or dug under. And since much of the U.S.-Mexico border is very remote, there are ample opportunities for migrants to do just that. Making the border crossing more difficult also encourages people who otherwise might have returned to Mexico (a phenomenon called “circular flow”) to stay in the U.S. Not to mention the incredible expense involved in building the wall, meeting environmental requirements, maintaining, and staffing it. All in all, even if congress had allocated funds for the construction of a wall, it would have, in all likelihood, been an abject failure before it was even finished being built.
So then why didn’t Democrats let Trump fail, and maybe get something out of it in the process?
If we make the comparison between immigration and the abortion debate in France, the wall seems, to me, a lot like the distress or emergency requirement: a symbolic policy that, in practice, did nothing to stop abortions but did serve to legitimize opponents' world view and mitigate their opposition.
A wall would have been seen as a big symbolic win, and with it a compromise may have been struck to actually make other aspects of America’s immigration system better. What could we have gotten in exchange for an ineffective wall? Could we have guaranteed due process and adequate representation in immigration court? Could we have expanded the number of available visas? Could we have broadened and simplified the qualifications for asylum, so that asylum seekers could get into the U.S. more quickly? Could we have accepted more asylum seekers? Could we have expanded the pathways for citizenship for those already living in the U.S.? Could we have also expanded protections for workers currently here on visas to prevent exploitation? Or maybe we could have made it easier for immigrants to get access to social safety nets, like food stamps, without fear of deportation.
Trump’s initial estimate for the cost of the wall was $8-12B. A cost that was clearly a dramatic underestimate. But so what? Allocate $8B, just what he asked for, and when he fails to build the wall (or get Mexico to pay for it), whose political career does that hurt? I sincerely wonder if Democrats missed the opportunity to get the substantive policies they want for the low price of the symbol that Trump wanted, which may have never fully materialized anyway.
I don’t want to pretend that I know for a fact this would have been a good deal for immigration. After all, there could be a lot of unintended consequences that go along with even agreeing to build a wall. It could, for example, strain the relationship between the U.S. and Mexico. And if the wall actually gets built some estimates are that it could reduce trade through the southern border by a third. Not to mention the environmental damage and disruption such a barrier could entail. And what makes unintended consequences so insidious is that they are so unpredictable. Perhaps the results could be even worse. It may not turn out that the wall is the best way to reduce polarization around immigration. But whatever we’re doing now sure isn’t doing it either.
Perhaps, though, rather than satisfy the Republican position, it emboldens them to demand more and more draconian measures. After all, given the extreme rhetoric, hatred, and vitriol that has been demonstrated by putting razor wire along the Rio Grande and killing a mother and her two children, I can understand the impulse to assume the worst of our opponents on this issue. How can we compromise with people like that? Is it worth the risk of even giving them what they want?
But I don’t think that would happen. I don’t think that most citizens want to insist that the state reject the values of others. They just want to know that it respects theirs. Thus, I don’t think compromise with anti-immigration extremists is even necessary. We don’t have to let the most extreme members of the Republican party have a little bit of white supremacy, just so they’ll play ball. The point is that most people, who have much more moderate positions on the issue even if they disagree with one another, just want to be able to see some part of their beliefs and identities reflected in the policies their legislatures pass. And isn’t citizens having a say over their nation’s decisions at the core of democracy?
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