Lessons From Across the Pond: Incorporating "Mandatory Yet Flexible" Solidarity into United States Immigration Policy
The humanitarian crisis at the United States Southern border is unprecedented.[1] In 2023, the Southern Border saw a record-breaking number of migrant encounters, up to nearly 2.5 million.[2] Recognizing the mounting crisis, the Biden administration has sought an additional $800 million in funding from Congress for federal immigration agencies, like Customs and Border Protection, bringing total federal spending on immigration enforcement to $25 billion, the highest historically.[3] While the renewed focus on immigration enforcement is a step in the right direction, solely providing funds ignores fundamental issues, like disproportionate burdens on border states, that plague the immigration enforcement framework.
Historically, United States immigration enforcement policy has been guided by national laws, like the Immigration and Nationality Act ("INA"), which outlines the statutes governing immigration, nationality, and naturalization, including provisions on admission and removal of noncitizens,[4] and obligations under international treaties, like the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol to the Convention.[5] Notably, the United States immigration enforcement framework does not prioritize any state burden-sharing dynamic, instead relying upon frontline border states, like Texas,[6] to supplement federal action on refugee and migrant activity, like border security, healthcare, and housing. While this framework has arguably worked in the past,[7] it is failing to meet the current border crisis.
In contrast, the European Union has recognized that while increased immigration enforcement spending is essential, revamping its immigration framework is also necessary.[8] Specifically, the European Union is focusing on the inherent unfairness in leaving frontline Member States to manage influxes of refugees and migrants alone, and is attempting to fix their current immigration enforcement and relocation framework, the Common European Asylum System ("CEAS"), through adoption of the New Pact of Migration and Asylum ("New Pact").[9] Focusing on where the CEAS failed, the New Pact emphasizes the need for a balance of responsibility and recognizes that, "no Member State should shoulder a disproportionate responsibility and that all Member States should contribute to solidarity on a constant basis."[10] The New Pact highlights, "challenges created by different geographical locations" and ensures that no single state bears an undue burden, especially those facing significant migratory pressures at their borders.[11] Innovatively, the New Pact creates avenues for Member States to contribute financially or operationally if they do not want to participate in relocation programs, promoting a more equitable sharing of responsibilities.[12] This focus on responsibility sharing through the guise of "mandatory yet flexible" solidarity is foundational to the New Pact.[13]
The United States can draw from the European Union’s "mandatory yet flexible" model to supplement its current immigration enforcement framework and alleviate stress on border states. Under the INA's broad delegation of authority, the federal government could develop mandatory national standards or goals, particularly in areas like relocation programs, border security, and immigration enforcement. Moreover, the federal government could expand on the state cooperative enforcement mechanism already in the INA to grant states more power to conduct broader immigration enforcement, alleviating the enormous pressure on federal agencies and other states.[14] Importantly, states, while adhering to these federal mandates, could be given the flexibility to tailor their immigration enforcement strategies to local needs and capacities, reflecting the "flexible" aspect of the concept, such as providing additional resources for local enforcement of federal immigration laws or offering support to states that are facing more pressure. This approach would supplement the national enforcement mechanisms outlined in the INA, adding a layer of cooperative federalism. Implementing this concept would need to respect the constitutional balance between state and federal powers, ensuring that state contributions to immigration enforcement do not infringe upon federally mandated responsibilities or violate preemption principles. Adopting this model would ensure that while border security remains tight, humanitarian responses to migrants are not compromised and frontline states are not overburdened.
Avery Bell is a staff member of Fordham International Law Journal Volume XLVII.
[1] Kathleen Bush-Joseph, Outmatched: The US Asylum System Faces Record Demands 13 (2024).
[2] Southwest Land Border Encounters, U.S. Customs and Border Protection (Feb. 13, 2024), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters. In 2021, the total amount of land border encounters at the Southern Border was around 1.7 million and in 2022, it was nearly 2.4 million. Id.
[3] Global Spending on Immigration Enforcement Is Higher than Ever and Rising, Migration Policy Institute (May 31, 2023), https://www.migrationpolicy.org/article/immigration-enforcement-spending-rising.
[4] 8 U.S.C. §§ 1101-1537.
[5] See generally Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.
[6] Texas spent roughly $4 billion on border enforcement in 2021 and 2022, which included funding for the state’s own border wall and the bussing of migrants from border towns to Democrat-led cities in the United States interior. See supra note 3.
[7] Others have argued that the United States immigration enforcement framework failed long ago. See Douglas Massey and Karen Pren, Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America (July 30, 2012), chrome extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ncbi.nlm.nih.gov/pmc/ articles /PMC3407978 /pdf/nihms389585.pdf
[8] Narintohn Luangrath et al., The Future of the European Union’s Migration and Asylum System, The Regulatory Review (Feb. 3, 2024), https://www.theregreview.org/2024/02/03/saturday-seminar-the-future-of-the-european-unions-migration-and-asylum-system/.
[9] Id.
[10] See Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, at 2, COM (2020) 609 final (Sept. 23, 2020).
[11] See id. at 5.
[12] See id.
[13] Olivia S. Diez et al., Return Sponsorships in the EU’s New Pact on Migration and Asylum: High Stakes, Low Gains, 23 European J. of Migration and L. 219, 219-221 (2021).
[14] The INA empowers the Immigration and Customs Enforcement agency to delegate to state and local law enforcement officers the authority to remove non-citizens with criminal or pending criminal charges and execute administrative warrants on non-citizens for arrest or removal. 8 U.S.C.S. §1357; see also Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement (Feb. 29, 2024), https://www.ice.gov/identify-and-arrest/287g.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.