Category Archive: Immigration
Comments Off on Trump’s proposed wall and tax are folly
As a professional teacher of economics, I wish to go on record about President Trump’s proposal to build a wall to keep people from Latin America out of the United States, and to charge a 20% tax on imports from Mexico to pay for it. The idea is wrongheaded on both counts: they would harm citizens of the US as well as those of Latin America.
The wall would cause harm because human beings are “the ultimate resource,” as Julian Simon taught us in a book by that name. Human ingenuity and creativity are the most valuable and productive forces known. They are at the root of our technology and productive enterprise. As long as people are free to use their ingenuity and creativity, and held responsible for their actions, they produce more than they consume. They generate net wealth which they exchange with one another.
This means that in a free country, the more people the better. Our policy should be open borders for all who wish to live here peaceably and work. The proposed wall would reduce standards of living in America (not to mention those of would-be immigrants seeking a better life).
An aside on jobs: yes, immigrants do take some jobs that people born in America might otherwise hold. But that does not mean fewer jobs for the American born. Why not? Because as long as people have unsatisfied needs and wants – that is, forever – there is work to do. People, the ultimate resource, discover new ways to satisfy unsatisfied wants, and they put themselves and others to work in doing so. Immigration and trade don’t reduce the total number of jobs, they just change the kind of work done.
As for the wall itself, have we no better use for the tons of concrete and steel, the miles of roadway and electrical wire, and the years of human time and effort it would take to build, maintain, and monitor it? We would be dumping precious resources in the desert in order to deny ourselves the ultimate resource. It’s stupefying.
As for the proposed 20% tax on Mexican imports to the US, that would reduce trade between the two countries by making Mexican goods more expensive to Americans (is that good for us?) and thereby reducing Mexicans’ earnings of dollars with which to buy American goods. And nothing is more important to human flourishing than trade. People in modern society produce not for their own consumption but for others’. The world economy is a vast system of cooperation in which everyone seeks to create goods and services for others and trades them for what he or she wants. To obstruct that cooperation by a tax on imports is to weaken the bonds of society. Our policy should be unqualified free trade.
Trump’s proposed wall and tax are folly.
Comments Off on Trump is wrong: Muslim immigration is reducing radical Islamism
During his inaugural address, Donald Trump vowed to “completely eradicate” radical Islamic terrorism. Today, in its first moves intended to do that, the administration acknowledged its plans for a complete ban on immigrants and refugees from several majority Muslim countries, including Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen. Yet the new policy will work contrary to its goal. U.S. Muslim immigration is reducing radical Islamism and anti-Americanism around the world.
For President Trump to fulfill his promise, America will need to do more than kill terrorists and arrest their collaborators. It will need to change the minds of many Muslims around the world about America and its institutions. Immigration is the best—perhaps the only—way that it can do this, and right now, U.S. Muslim immigration is reforming the religion, creating a new cohort of liberal Muslims able to combat Islamist arguments.
For example, Pew Research Center polls reveal that an average of just 4 percent of Muslims in other countries consider homosexuality “morally acceptable,” compared to 45 percent among U.S. Muslims—81 percent of whom are either first or second generation immigrants. Only 20 percent of foreign Muslims believe that other religions can lead to eternal life, compared to 56 percent in the United States. Fully 55 percent of U.S. Muslims believe that the Quran should not be even a source among many for legislation, compared to just 15 percent elsewhere.
This process of assimilation is actually accelerating as Muslim immigration to the United States has peaked. More immigration is not impeding integration. From 2007 to 2014, the share of U.S. Muslims who agree not just that homosexuality should be legal, but that it is “morally acceptable” rose from 27 percent to 45 percent. Pew also documents an 8 percent decline—from 50 percent to 42 percent—in the share of U.S. Muslims who believe that the Quran should be interpreted “literally.”
These facts show that Americans as individuals are good at changing people’s minds. One Syrian refugee and her husband were resettled in Las Vegas—not really known as a haven for religious Muslims. “We had to Google it,” she told the Las Vegas Sun. “We read about its image as a sin city.” But even in the midst of the most extremely socially liberal environment in America, they were quickly won over. “When we came here, we liked it,” she said.
America’s socially tolerant Muslims also reflect the fact that many Muslims who want to come to the United States are prone to accept our way of life from the start. “I immigrated to the U.S. and left my family and home because of my freedom,” one Syrian who escaped to Nashville said. “I also wanted to ensure such freedom is protected, not only for my children, but also for everyone else. I strongly believe in the U.S. Constitution and will fight to protect it, period! Everyone in my community felt the same way.”
These warm feelings about the United States and religious freedom are being transmitted to families and friends around the world. “I want to keep painting the image to all of my family and friends about the goodness of the American people,” Marwan Batman told the Indy Star. “I wish other refugees would be able to come and experience the same things we have experienced … to find the same happiness we have found here.”
This pattern is replicated repeatedly across the United States, where almost 20,000 Syrian refugees have come. “I didn’t know anything about Memphis,” one Syrian refugee told his local paper early last year. “The people have been excellent.” He wants everyone to know. “When I talk to my family they ask, ‘How is the treatment of Americans,’ and I say ‘it’s wonderful,’” he explained.
America has changed a major world religion before. During the 19th and early 20th centuries, as Catholic immigrants poured in, its popes repeatedly condemned religious freedom as an anti-Catholic idea. Americans raised the alarm about this “invasion” of illiberal immigrants who operated their own schools and lived in separate neighborhoods.
Yet it was this wave of immigration that changed the Church. Just after America elected its first Catholic president who vowed to fiercely defend the separation of Church and State, the Church evolved its view, pointing to liberal democracies as proof that freedom of conscience worked. American theologian John Courtney Murray even drafted its statement on religious liberty and convinced the Second Vatican Council to accept it in 1965.
Something similar is already underway in a much smaller way among the 3 million U.S. Muslims. But for this movement to change Islam worldwide, there will need to be many more U.S. Muslims. Right now, they make up just 1 percent of the U.S. population, while Catholics represented a quarter in 1965.
Rejecting Muslims from this part of the world will not make us safer. To “eradicate” radical Islamic terrorism completely, Trump will need more than just bombs and “extreme vetting.” He will need to convince many millions of people that freedom of religion and tolerance is better than jihad. He will need many more allies than he has now. Preventing potential allies from coming to the United States is no way to win this fight.
Comments Off on Obama’s cruel policy reversal on Cuban refugees
For some fifty years, the US has had a policy of welcoming refugees fleeing the brutal communist dictatorship in Cuba. In the 1990s, the policy was changed to “wetfoot, dryfoot,”under which Cubans who succeeded in reaching the United States would be allowed to stay, but those unfortunate enough to be caught at sea were barred. On Thursday, President Obama ended the wetfoot, dryfoot policy and made Cuban refugees “subject to removal,” like undocumented migrants from other countries. They might still gain official refugee or asylum status and be allowed to stay by proving that they have been personally targeted by the government on the basis of their political speech, religion or some other characteristics. But that is extremely difficult in most cases. For most Cubans, like other victims of communist governments, the main injustice they suffer is the everyday oppression meted out to all the regime’s subjects.
There is absolutely no justification for Obama’s new policy. It is gratuitously cruel towards Cuban refugees, without creating any meaningful benefits. Despite some modest economic reforms, Cuba remains a repressive communist dictatorship whose people suffer massive oppression and poverty brought on by over fifty years of totalitarianism. Indeed, repression of dissent has actually increased since President Obama began to normalize relations with Cuba in December 2014.
If anything, the United States would have done better to end the “wetfoot” portion of the policy and stop turning back Cuban refugees who have the misfortune to be caught at sea. Where a refugee happens to be found by US authorities is a morally arbitrary characteristic that in no way changes their status as victims of brutal tyranny.
The main victims of Obama’s new policy will be Cubans denied the chance to seek freedom and opportunity. But native-born Americans will lose out as well. The hundreds of thousands of Cuban refugees who came to the US fleeing communism have made major contributions to our economy and society. As President Obama himself said just a few months ago: “In the United States, we have a clear monument to what the Cuban people can build: it’s called Miami.”
President Obama and the US government are not responsible for the oppression that Cuban refugees are fleeing. But they are responsible for using force to compel refugees to return to a nation where further oppression is likely to be their lot. Such action makes the US government partially complicit in the injustice perpetrated by the Cuban regime.
The main rationale for the policy change is that it is unfair to treat Cuban refugees differently from those fleeing other oppressive governments. As President Obama put it, we should treat them “the same way we treat migrants from other countries.” Ideally, we should welcome all who flee oppression, regardless of whether their oppressors are regimes of the left or the right, or radical Islamists.
But the right way to remedy this inequality is not to treat Cuban refugees worse, but to treat other refugees better. And if the latter is not politically feasible, we should at least refrain from exacerbating the evil by facilitating the oppression of Cubans. It is better to protect Cuban refugees from the risk of deportation than none at all.
If a police force disproportionately abuses blacks, it would be unjust to “fix” the inequality by inflicting similar abuse on whites or Asians. Inflicting abuse on other groups is both unjust in itself and unlikely to help blacks. Similarly, the injustice inflicted on refugees from other oppressive regimes cannot and should not by imposing similar injustices on Cubans.
In his recent Farewell Address, President Obama rightly celebrated our history of welcoming “immigrants and refugees across oceans and the Rio Grande” and emphasized that “America wasn’t weakened by the presence of these newcomers; these newcomers embraced this nation’s creed, and this nation was strengthened.” Sadly, just two days later he himself violated the very principles he himself espoused.
The president deserves credit for his previous efforts to protect undocumented migrants. But his legacy is tarnished by the gratuitous cruelty of what may well be his last major policy initiative.
Comments Off on Trump’s order on sanctuary cities is dangerous and unconstitutional
Yesterday, President Donald Trump signed an executive order denying federal funding to sanctuary cities – jurisdictions that choose not to cooperate with federal efforts to deport undocumented immigrants. The order has serious constitutional problems. Unless interpreted very narrowly, it is both unconstitutional and a very dangerous precedent. Trump and future presidents could use it to seriously undermine constitutional federalism by forcing dissenting cities and states to obey presidential dictates, even without authorization from Congress. The circumvention of Congress makes the order a threat to separation of powers, as well.
The order indicates that sanctuary cities “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” More specifically, it mandates that “the Attorney General and the [Homeland Security] Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
Section 1373 mandates that
a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373.
First, longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.”
Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both separation of powers and federalism.
Even aside from Trump’s dubious effort to tie it to federal grants, Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.
Section 1373 attempts to circumvent this prohibition by forbidding higher-level state and local officials from mandating that lower-level ones refuse to help in enforcing federal policy. But the same principles that forbid direct commandeering also count against Section 1373. As the late conservative Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the “[p]reservation of the States as independent and autonomous political entities.”
That independence and autonomy is massively undermined if the federal government can take away the states’ power to decide what state and local officials may do while on the job. As Scalia put it in the same opinion, federal law violates the Tenth Amendment if it “requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity.” The same is true if, as in the case of Section 1373, the federal government tries to prevent states from controlling their employees’ use of information that “is available to them only in their official capacity.”
Some defenders of Trump’s policy claim that the anti-commandeering rule does not apply to federal laws that mandate disclosure of information. I addressed that argument here. Quite simply, there is no information-disclosure exception to the Tenth Amendment, and it would be very dangerous for the courts to create one.
The Trump administration might try to push a more expansive interpretation of Section 1373 that goes beyond information-sharing and extends to actual detention of undocumented immigrants targeted for deportation. That would only make the law more clearly unconstitutional than if it were limited to information. Pushing state officials to detain people is an even greater interference with state “independence and autonomy” than pressuring them to disclose information.
Unlike the question raised by Trump’s attempt to impose grant conditions not authorized by Congress, the anti-commandeering issue raised by Section 1373 has not yet been directly addressed by the Supreme Court (though the law was upheld in a badly flawed lower court decision back in 1999). We cannot be certain what will happen when and if the justices take up this issue. But the principles underlying the Court’s anti-commandeering cases should lead it to strike down this law.
The constitutional issues raised by Trump’s executive order are not mere technicalities. If the president can make up new conditions on federal grants to the states and impose them without specific, advance congressional authorization, he would have a powerful tool for bullying states and localities into submission on a wide range of issues. Such an executive power-grab also undermines separation of powers. Congress, not the president, has the constitutional authority to attach conditions to federal grants to state governments.
Even if the power-grab is limited to withholding funds when states or localities violate other federal laws and regulations, it is still a grave menace. There are literally thousands of federal laws and regulations on the books. No jurisdiction can fully comply with all of them. If the president can withhold funds from any state or locality that violates any federal law, without needing specific authorization from Congress, he would have sweeping authority over state officials.
Trump’s order is exactly the kind of high-handed federal coercion of states and undermining of separation of powers that outraged conservatives under Obama. In fact, Obama did not go as far as Trump seems to do here. Obama never claimed sweeping authority to impose new conditions on federal grants beyond those specifically imposed by Congress. Even those who sympathize Trump’s objectives in this case should pause to consider whether they want presidents to have this kind of power going forward. Trump’s use of it today could easily serve as a model for a liberal Democratic president tomorrow.
I have my reservations about some aspects of the Supreme Court’s conditional spending precedents. The doctrine is far from ideal. But it is far preferable to letting the president make up conditions and impose them without congressional authorization.
The administration could potentially avoid these constitutional problems if they interpret the order very narrowly. The text states that federal funds will only be withheld from sanctuary cities “to the extent consistent with law.”
Taken literally, that might bar any withholding of funds not explicitly conditioned on compliance with Section 1373. After all, the Constitution is the law, and the Constitution does not allow the president to impose grant conditions not specifically authorized by Congress.
But such a narrow interpretation would make the order largely superfluous. After all, the federal government is already required to withhold funds from jurisdictions that disobey conditions specifically imposed by Congress. Still, it is better that the order be redundant than that it mount an assault on federalism and separation of powers.
If Trump does not withdraw this order or adopt a narrow interpretation of it, sanctuary cities should fight him in court. And all who care about constitutional federalism and separation of powers should support them.
Comments Off on President Trump’s 6 biggest threats to liberty
Donald Trump has been sworn in as the 45th President of the United States, and libertarians already have many reasons to be worried about his agenda. While it is difficult to pick from his various policy proposals that threaten liberty, here are the six biggest concerns for libertarians living under a Trump administration.
1) The rule of law.
The rule of law requires the president to follow the Constitution and the laws passed by Congress and to apply the law in a uniform manner, not to specifically punish or benefit certain people or businesses. President Donald Trump seems determined to erode both of these principles.
He has stated his intention to force Ford Motor Co. to give up its expansion plan in Mexico. He wants to use the FCC to fine his critic, Rich Lowry, and to “open up libel laws” to punish critical news media. He successfully cowed Washington Post owner Jeff Bezos after threatening antitrust action against Amazon.com. By helping the manufacturer Carrier secure special subsidies in Indiana, he has shown a willingness to bestow favors on those he likes. Nominating major donors to positions of power in his administration and using his office to enrich his and his children’s businesses are also causes for concern.
Trump already has his lawyers cooking up inane legal justifications for unilateral executive action on policies that Congress might not authorize. To justify seizing all remittances from undocumented immigrants, for example, his lawyers try to claim that “wire transfers” from Western Union are actually bank “accounts” under the Patriot Act.
This type of phony legal gymnastics can only be stopped by Congress defunding the illegal action or by engaged federal courts. Congress seems unwilling to buck Trump so far, and even if they do — or if the Supreme Court rules against him — will President Trump listen? His past statements that he would force soldiers to carry out illegal orders does not instill much confidence in his respect for checks and balances, separation of powers, or the rule of law.
2) Bigger government, more debt.
Donald Trump wants to spend hundreds of billions more on the military, blow $1 trillion on infrastructure stimulus, and spend billions of dollars on a pointless and symbolic border “wall,” all while providing health insurance for “everyone” and not cutting Medicare or Social Security.
The Republican-controlled Congress, which just passed a budget that will never balance, seems more than willing to oblige these bloated requests. The House Liberty Caucus called it “the worst budget ever seriously considered by Congress,” growing the debt by $9 trillion over ten years, “dwarfing debt increases proposed by even the most far-left budgets.”
But not to worry — Trump has said that “you never have to default because you print the money.”
3) Trade wars.
Donald Trump has declared an all-out war on American consumers and businesses who want to buy products and materials from other countries. Sadly, it is also the one issue on which he was able to convince a large number of formerly free trade-supporting GOP voters.
He has repeatedly vowed to end America’s free trade agreement with Mexico and Canada, and to impose massive new tariffs on foreign and U.S. companies selling products assembled overseas to U.S. consumers. He has even said that he “doesn’t mind trade wars,” meaning that he would apparently not back down even if other countries retaliated against American businesses by blocking stuff made in America from being sold abroad. He has nominated Wilbur Ross to be Commerce Secretary, despite (or because) of the fact that he is an Adam Smith-denier with very detailed views on how to ruin international trade.
4) Attacks on legal immigration.
Donald Trump’s attacks on unauthorized immigrants are well known — including his most recent pledge to deport more people than the Obama administration, in half the time — but the Trump administration is also likely to attack the legal immigration system.
Trump’s own comments on legal immigration aren’t as consistently bad as they are often portrayed, but he has repeatedly vowed to ban immigration and refugees from the Middle East, with each iteration of his “Muslim ban” proposal becoming more expansive and less legal. Trump’s team has offered a very detailed plan about how to reduce legal immigration into the United States, and his close ties to other anti-legal immigration advisors seem to show that his anti-immigration tendencies are winning out.
Trump’s pick for attorney general, Sen. Jeff Sessions, is also the most vociferously anti-immigrant member of Congress. Sessions believes that too many immigrants receive asylum in the United States, and, as the head of the immigration courts, he could require judges to interpret the asylum law more restrictively.
As attorney general, Sessions will also be tasked with defending existing U.S. immigration laws and regulations in the courts; he could simply choose not to defend any immigrant-friendly regulations he disagrees with, torpedoing other agencies’ rules by proxy. Sessions also wants to investigate law-abiding businesses that hire legal foreign workers for supposed “discrimination” against U.S. citizens.
5) Civil liberties.
Trump said last year he would be “fine” with repealing the USA Freedom Act, which limited bulk data collection on U.S. citizens, and he has advocated “surveillance of certain mosques” and shutting down others entirely — an idea that he followed by proposing to “close up certain areas” of the Internet. “Somebody will say, ‘Oh freedom of speech, freedom of speech,’” Trump scoffed, “These are foolish people.”
Both Sen. Jeff Sessions and Trump’s nominee for Director of the CIA, Rep. Mike Pompeo, are extremely hostile to the Fourth Amendment, and Pompeo has stated that “Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.”
Sen. Sessions is also a zealous drug warrior who will not commit to maintaining the Obama administration’s approach for drug enforcement in states with legal marijuana. He has also said that he wants police to seize property from suspects who have never been convicted of a crime. He has promised to end the Justice Department’s practice of suing police departments with a pattern of violating civil rights.
Trump appears to back this approach, repeatedly stating that he would give police “more authority” and advocating “stop and frisk” programs: detaining, searching, and interrogating people without probable cause. He said he would use “stop and frisk” as a tool to seize guns, and, lest you think the Second Amendment was safe, he also wants to use the secret no-fly list to deny Americans the right to buy firearms.
Trump also thinks that the Obama administration is fighting a “politically correct war” that is too concerned about civilian casualties overseas. By contrast, Trump advocates “taking out the families” of terrorists, a position he has reiterated on several occasions.
Even setting aside that explicit call for war crimes, criticizing President Obama for being too worried about killing civilians is particularly scary: Obama adopted such broad standards for his secret drone war that the CIA counts any “military-age” male death as a “combatant,” unless they are posthumously proven innocent. Obama also ordered an air strike that killed the 16-year-old child of at least one U.S. citizen. Apparently, this is all too “PC” — imagine the amount of care President Trump will take to protect innocent lives when he is “bombing the s**t” out of Syria.
This list is by no means complete and doesn’t imply that these are the only issues to worry about, but it does suggest that a Trump presidency may pose new and unique threats to liberty in the United States. For defenders of liberty, these are six fronts worth special attention as we go into the next administration.
Comments Off on Turning away Cuban refugees is a victory for Cuba’s dictatorship
President Obama is abandoning America’s five decade-old policy that guarantees Cubans asylum in the United States. The change comes at a time when more Cubans are arriving at U.S. borders than at any time since 1980, and it is a major win for the Cuban regime and opponents of immigration, who both want to stop Cuban immigration to the United States.
But the sudden reversal is bad policy that will harm efforts to secure the border and aid the regime most hostile to human rights in the Western Hemisphere.
Cuban Immigration Is a Win for America
In 1966, Congress passed the Cuban Adjustment Act (CAA), granting lawful permanent residency to any Cuban national who has resided in the United States for at least two years (later lowered to one year). Each of the last eight administrations has interpreted the law to allow almost all Cubans who arrive at U.S. borders to apply for “parole” — a discretionary legal status that permits them to enter and wait a year to receive a green card to stay permanently.
This system has served the United States extraordinarily well. Because Cubans who enter illegally cannot apply for a green card, border security is enhanced, since they never try to sneak past Border Patrol. Instead, they just line up and turn themselves in at a port of entry. They show their Cuban passports, receive background checks, and then are admitted. The United States has very few unauthorized immigrants from Cuba precisely because all Cuban immigrants who make it into the country are paroled and adjusted to legal permanent residency.
America — and specifically Miami — has benefited enormously, both economically and culturally, from the presence of Cuban immigrants. After the 1980 Mariel boatlift brought about 125,000 Cuban refugees to Florida, Miami’s population has grown much faster than other cities. Despite often arriving destitute, Cuban-Americans have achieved the same median income as all Hispanics and actually have the highest rate of home ownership. The Kauffman Foundation ranked Miami in the top two cities in the country for entrepreneurship in 2016, driven in part by its large immigrant population. Miami also has the best ranking in the state for upward mobility.
Most importantly, U.S. immigration policy has allowed 10 percent of all Cubans to escape the most tyrannical regime in the Western Hemisphere. This policy has been a constant threat to and check against a regime that survives by preying on its own people, and, for this reason, the island’s dictatorship has repeatedly condemned it.
The Excellent Reason Cubans Are Treated Differently
President Obama says that the United States will now treat “Cuban migrants the same way we treat migrants from other countries.” But Cuba is not like all other countries. It is the only dictatorship on America’s side of the world. As I wrote in the Miami Herald last year:
The basic principle that people should not be treated differently based on national origin is valid, but Cubans receive special treatment not due to where they are from, but due to how they are treated where they are from. Cubans aren’t treated uniquely because they are Cubans, but because, according to Freedom House, Cuba is the only “unfree” country in the Western Hemisphere.
The communist system has no electoral process, political dissent is a criminal offense, corruption is rampant, independent media is banned, and all forms of everyday activities are regulated, including internal movement. Cuba is the 12th most unfree country in the world. It is less free than Iran and South Sudan. Even communist China received a higher score.
No other country in the Americas comes close. In 2015, the pretend socialists in Venezuela were still 50th and ranked “partly free.” Haiti and Honduras came in at 57th and 62nd respectively. This is why Cubans are singled out.
Congress stated in 1996 that the law would end when “a democratically elected government in Cuba is in power.” As long as Cuba remains unfree, America will continue to welcome Cubans. Rather than repeal this principle, Congress should expand it to any country in our part of the world that is unfree.
What Happens Next
The fact remains, however, that President Obama cannot repeal the Cuban Adjustment Act itself, which guarantees permanent residency after one year to any Cuban who has legally entered the United States. This change could result in Cubans filing asylum claims under the normal asylum system, as Central Americans do, and waiting in line for a year before applying for a green card under the CAA, as they always have. Ultimately, this could dilute the impact of the policy shift.
Nonetheless, the current asylum system, which is already massively backlogged, will only grow more so as a result. At a time when a record number of asylum seekers from Central America are coming to the border, the United States is going to throw the Cuban refugees in with the rest, making a broken system that much more dysfunctional. It will also increase illegal immigration, as Cubans will know that they can no longer be guaranteed entry to the U.S., and those who expect their asylum claims to be denied will seek illicit means of entry.
Some people claim that the only reason so many Cubans are coming right now is that they feared the administration would do exactly what it has just done. But the reality is that the rise in Cuban arrivals in recent years started before President Obama announced any changes in Cuban policy. Its true causes are 1) the Cuban regime’s relentless assault on human rights, and 2) its decision to end restrictions on travelling abroad, which has led many oppressed Cubans to seize the chance to leave.
Despite President Obama’s hopeful message after the death of Fidel Castro, the Cuban government continues its oppressive policies. Nearly 10,000 people were arbitrarily arrested in 2016 alone, and there was a particularly large surge of arrests after Castro’s death, demonstrating that his dying changed little.
Donald Trump — whose statement condemning the Cuban dictator after his death had more moral clarity than any single statement that the president-elect has ever made — should immediately reverse this policy upon assuming office. The United States should honor its commitment to remain open to the Cuban people for as long as the electoral process in Cuba remains closed to them.
Comments Off on Trump’s ban on immigration from certain countries is illegal
Angelo A. Paparelli contributed to this post.
This week last year, Donald Trump proposed prohibiting all Muslim immigration to the United States. He altered the proposal this year to specify “suspending immigration from nations tied to Islamic terror.” He told CNN that this was actually intended as an expansion of the Muslim ban. Last week, he said, “People are pouring in from regions of the Middle East,” but that he would “stop that dead, cold flat.” He has also made clear that this would be one of the actions that he takes as president during his first day in office. This promise implies that he has the power to do so under current law, but that is not the case. It is illegal to discriminate against immigrants based on their national origin.
Even while delegating to the president broad powers to exclude immigrants, Congress also expressly forbade banning immigrants based on their race or national origin. President Trump will almost certainly run into legal difficulties if he attempts to carry out his promise.
Text of the law bans discrimination based on national origin
At first blush, it would seem that the president can ban people based on their nationality or country of residence. The Supreme Court has granted Congress extensive leeway under the plenary power doctrine to limit immigration based on criteria—such as race or national origin—that would be considered unconstitutional in other contexts, and proponents of Trump’s plan claim that Congress authorized such bans by pointing to a provision of section 212(f) of the Immigration and Nationality Act (INA), the law that controls most U.S. immigration policies:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
This seems to hand unequivocal authority to the executive branch to determine who it may admit to the United States. However, another section of the law clearly bans discrimination against certain classes. Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):
…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
While section 212 grants the president a general power to exclude certain immigrants, section 202 limits this power. Note that this section does not prevent discrimination based on religious affiliation, political belief, or ideology, but Trump’s new policy would run afoul of at least one if not all three of those last three restrictions—nationality, place of birth, or place of residence—depending on how it was applied. “Place” of birth is actually a broader restriction than nationality, meaning that even if Trump’s ban applied to subnational or regional levels, it would still be illegal.
Section 202 does not protect all types of people who wish to come here from discrimination based on national origin. It is limited only to immigrants or so-called green card holders. Legally, immigrants are foreigners who enter on visas granting legal permanent residency in the United States as well as noncitizens whom the U.S. Citizenship and Immigration Services has adjusted their status to that of a permanent resident. The most common types of immigrants are immediate relatives of U.S. citizens—parents, spouses, and their minor children—who have no numerical limit. Other types include employees sponsored by U.S. businesses, adult children of U.S. citizens, their siblings, and immediate relatives of legal permanent residents. Refugees and asylees who have already entered the United States and held status for a year are eligible for immigrant visas, making discrimination against them at that stage also illegal.
Refugees outside of the United States, however, could still be excluded based on nationality before they enter as they do not enter on an immigrant visa. Obviously all nonimmigrants—guest workers, tourists, and other temporary visitors—could conceivably be subject to this discriminatory policy. It could also apply to those who are claiming asylum in the United States, but at the same time, the law prohibits deporting people who face a likelihood of persecution in their home country, which could leave such people in limbo.
Finally, because section 202 applies only to the issuance of the visa, it would not necessarily bar other types of discrimination, such as reporting or registration requirements. This type of discrimination was also upheld in a federal circuit court case involving Iranian nonimmigrant students in the United States who were required in 1979 to report to an immigration service office for interview and registration.
Section 202 also does not prohibit discrimination based on religious affiliation, but recently Trump has been adamant that his proposed ban would apply to countries rather than religions. “I’m looking now at territory. People were so upset when I used the word Muslim,” he told NBC. “I’m okay with that because I’m talking about territory instead of Muslim.” If he maintains this position, he will clearly be in violation of the law.
Trump’s plan is a more extreme overreach than anything President Obama tried
Proponents of the Trump plan could argue that section 202 does not directly state that its restriction applies to section 212. But reading section 202 as having no impact on section 212 would mean that section 202 was intended as no restriction at all—something that the president could waive at any time for any reason. By contrast, section 212 would not be rendered pointless if section 202 limits its authority. The president could still bar certain classes of aliens from the United States. He just could not do so based on race, gender, nationality, or place of birth or residence. This interpretation makes sense of both laws in a way in which both serve a purpose.
Any other reading would grant the president power to use his general section 212 authority even in situations in which Congress has said he cannot use it. In other words, it would write section 202 out of the law. To be sure, there is an interesting parallel here between the Trump plan and President Obama’s attempted executive action on immigration, which was criticized—including by the Cato Institute and by candidate Trump—as executive overreach.
President Obama proposed using his general authority in section 274A(h)(3)(B), which recognizes his authority to issue employment authorization to whomever he wants, to grant work permits to unauthorized aliens with U.S. citizen children. Since it was first enacted in 1986, Congress had enacted provisions limiting the use of or requiring the use of executive power to authorize employment of certain individuals, but none of these provisions applied specifically to the class of noncitizens to whom he wanted to grant employment authorization. President Obama argued that he could use his general authority to issue work permits to anyone so long as the law did not specifically prohibit him from doing so.
Donald Trump’s plan by contrast is a much more extreme overreach. He would be forced to argue that not only could he use his general authority to ban immigrants in any way that he chooses, he could do so even in situations in which the law specifically prohibits him from doing so. This power grab is so much more far-reaching than President Obama’s that virtually any court will likely view it with great skepticism.
It is out of the question to claim that section 202 prohibits discrimination only in the issuance of the physical visa document that allows foreigners to request admission as an immigrant. Sections 201, 202, and 203 of the INA, which are entirely devoted to limiting the number of visas for immigrants, are discussing actual persons who can come and live permanently as a result of receiving a visa, not just about limiting the issuance of the physical documents allowing people to travel to a port of entry and request entry. If it were only referencing visa documents, the president could grant immigrant status to an uncapped number of people without issuing visas to them—which is clearly unjustified.
Legislative history supports a ban on discriminating by national origin
The historical background for the enactment of section 202 supports the interpretation that it was intended to bar all national origin discrimination against immigrants. During the late 19th and early 20th centuries, Congress passed several laws barring the immigration of immigrants based on where they were born or resided. In 1882, it banned “the coming of Chinese laborers to this country.” In 1917, it “excluded from admission” all “persons who are natives… of any country… on the Continent of Asia” from India and eastward—the so-called Asiatic Bar Zone—and in 1924, it implemented the national origins quota system, which skewed the quotas to the benefit of immigrants from Western Europe.
In 1952, Congress debated repealing this prejudicial system, but ultimately refused to do so. Instead, it passed a bill that contained only minor revisions. It was in this law that Congress introduced the section 212 authority to ban immigrants based on nationality. President Truman vetoed the bill, inveighing against it as a violation of the “great political doctrine of the Declaration Independence.” He specifically objected to “powers so sweeping” that they could be used to exclude or deport aliens based on such vague and potentially discriminatory grounds such as “public interest” (powers first included in a bill in 1950 that he had also vetoed). Congress overrode the veto and the legislation became the Immigration and Nationality Act of 1952.
All of this history is important because section 202 was enacted as part of the Immigration Act of 1965, which was intended as a repudiation of the discriminatory system of 1952. The very first paragraph in section 202 (quoted above) banned any attempt to resurrect the old prejudicial system. The rest of section 202 details the new per-country limits, which provide that each country receives an equal share of the annual limits. Senator Ted Kennedy, the congressional architect of the 1965 law, said that it was intended to “eliminate the national-origins system, which was conceived in a period of bigotry and reaffirmed in the McCarthy era.” In other words, the law was intended to repudiate the 1952 act and all that came before it. The Judiciary Committee Report on the bill stated in its first line: “The principal purpose of the bill, as amended, is to repeal the national origin quota provisions of the Immigration and Nationality Act.”
President Lyndon Johnson summed up the law best in his signing statement:
This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here. … The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.
Under that system the ability of new immigrants to come to America depended upon the country of their birth. Only 3 countries were allowed to supply 70 percent of all the immigrants. Families were kept apart because a husband or a wife or a child had been born in the wrong place. Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. Today, with my signature, this system is abolished.
In other words, the explicit intent of the 1965 law was to “abolish” the very kind of discrimination that Donald Trump is proposing to create by executive fiat. On section 202 in particular, Senator James Easterland, an opponent of the bill, commented:
the President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…
The goals could not have been clearer to anyone—opponent or proponent—and there is simply no way to slip national origin discrimination back into the 1965 act with section 212 of the 1952 act. Senator Bobby Kennedy stated forcefully on the floor of the Senate that he believed that the law would “eliminate from the statute books a form of discrimination totally alien to the spirit of the Constitution.” In the congressional debate over the bill, senators constantly argued that the bill would end, as Senator Jacob Javitas put it, “the basic discrimination” of the 1952 act. To claim that in 1965 Congress did not in fact eliminate the discrimination of the 1952 act but instead continued to allow it under section 212 of that very act flies in the face of not only the explicit text of the law, but pages upon pages of the congressional record.
Court precedent backs a ban on national origin discrimination
The D.C. circuit court of appeals has also found that the president cannot discriminate against immigrants based on nationality. The case involved whether certain asylum seekers could apply for immigrant visas at U.S. consulates outside of their country of origin. The Department of State created new rules making it more difficult to do so only for Vietnamese asylum seekers in Hong Kong, and the asylum seekers sued. The government did not even attempt to argue that section 212 would allow discrimination, but rather that they had changed the rules for reasons unrelated to nationality.
In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. circuit granted standing to a U.S. citizen who was attempting to sponsor his Vietnamese spouse in Hong Kong. The court found that discrimination had taken place under section 202. It stated that the policy drew “an explicit distinction between Vietnamese nationals and nationals of other countries.” It wrote:
Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service’s interpretation proffered by the Department.
The court stated that the government’s “proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render section 202(a) a virtual nullity.” The court also disregarded the administration’s argument that “it retains discretion under § 1152(a)(1) to discriminate on the basis of nationality so long as its policies are rationally related to U.S. foreign policy interests.” It stated:
Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling—perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred “rational basis.”…
The court also rejected the idea that the policy was not based on nationality because the administration was doing the same thing to Laotians detained in Thailand. The court also cited this passage from Haitian Refugee Center v. Civiletti, a district court case from Florida in 1980,that concluded:
In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper.
Congress responded to the decision in the Vietnamese case by amending section 202 to state that the limit on discrimination should not apply to “procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” When the Supreme Court remanded the case in light of this change, the appeals court reversed its earlier decision in 1997. Nonetheless, the amendment clearly shows that Congress did want this anti-discrimination provision to have some effect or it would have just deleted it entirely.
Past presidential actions do not support the legality of Trump’s policy
Proponents of the Trump plan can also point to specific cases in which presidents have used the authority in section 212 to ban certain classes of foreigners. But in almost all of the cases, these actions barred individuals based on their actions rather than their nationality. President George W. Bush, for example, barred the entry of participants in the Mugabe government in Zimbabwe, but not all Zimbabweans. President Obama has exercised the authority under section 212 several times, but has never imposed a ban against an entire nationality. As a typical example, he prohibited the entry of anyone under a United Nations travel ban in 2011.
No president has ever banned all immigrants from a certain country without any exceptions, as Trump is proposing, and in only a couple of instances out of dozens have presidents exercised the authority in section 212 against a particular nationality at all.
In 1980, President Carter suspended issuances of visas to all Iranian citizens. From the text of his proclamation, it is unclear whether this applied to only nonimmigrant (temporary) visas—which would have been legal—or also to immigrant visas, but news reports imply that it applied only to temporary visitors. A Washington Post report from 1980 discussed the ban applying only to “students, tourists and businessmen”—the main categories of nonimmigrants—and multiple articles from the New York Times framed the issue as only impacting “foreign visitors.” Moreover, government statistics show that thousands of Iranians continued to receive immigrant visas in 1980.
Either way, President Carter only took this action because Iranian rebels seized control of the U.S. embassy and began using the U.S. visa machine to print fraudulent visas, making it impossible to determine who had a bona fide visa. It is also unclear if the ban applied to Iranian nationals whose visas were not issued in Iran. For these reasons, the Carter case is a poor parallel for Trump’s blanket ban.
In 1986, President Reagan suspended entry of all Cubans—immigrants and nonimmigrants—but this bar had a major exception for those who were immediate relatives of U.S. citizens, which is the main category of legal immigration. Cubans are also unlike other immigrants because Cuban immigration is partially governed under the Cuban Adjustment Act of 1966, which does in fact preference the issuance of visas to Cubans by granting visas to almost all Cubans who have been in the United States for a year. In any case, neither president’s actions were challenged in the courts, so their legality remains untested.
The breadth of the Trump plan is unprecedented
These past actions are particularly unconvincing when considering the breadth of the Trump plan. According to Trump, the immigration ban would apply to an entire region of the world. He has even refused to rule out banning immigration from France because “they have totally been” compromised by terrorism. CNN has estimated that a ban broad enough to include France would comprise at least 40 countries, but even the least broad restriction against immigration from countries with “terrorist safe havens” would eliminate all immigration from a dozen nations.
President Obama’s attempted executive actions on immigration were partially struck down in part due to their breadth. The courts conceded the president’s power to authorize immigrants to work and to suspend deportations, but not when it amounted to a wholesale abandonment of the law. This point is even much clearer in this case.
For almost a decade, Congress debated creating an immigration system free from discrimination by nationality, country of birth, or country of residence. President-elect Trump, however, now proposes to discriminate unlawfully against certain foreign nationals on the basis of the same protected grounds without any legislation from Congress.
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As tensions increase over immigration policy, misconceptions abound. Listen in as David Bier of the Cato Institute separates fact from fiction.
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Contrary to some political rhetoric you may have heard, American Muslims believe in religious freedom. In fact, American Muslims are even more strongly opposed to religion impacting govt than American Christians. Policy Analyst David Bier explains:
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One common misconception about immigrants is the belief that they cause or increase crime. Join David Bier, a policy analyst from the Cato Institute, as he reconsiders this idea and examines the benefits of immigration.
Comments Off on Nativists created our immigration problems—they can’t fix them
Proponents of more restrictions on immigration—legal and illegal—talk a big game, suggesting more penalties for lawbreakers, more assets for the border, and more surveillance for the workforce. These, restrictionists say, will restore the rule of law. Yet while occupying the White House is new for them, the fact is that restrictionists largely dictated U.S. policy until recently. Not only have their ideas failed on their terms, they have backfired, creating more lawlessness than before.
Creating the Problem
Before the 1920s, America had no numerical restriction on the number of immigrants, so legal immigrants poured in. As a share of the population, total annual immigration flows were four times as great then as they are today. Restrictionists—members of the progressive wings of both parties—won the election of 1920 and immediately imposed a numerical cap. This reduced legal immigration by 80 percent, barring immigrants regardless of their health, wealth, or skills.
This fateful decision spawned all of the problems that restrictionists have blamed on their opponents ever since. “While legal immigration has been curbed to the extent that advocates of the new policy expected, that of the illegal—the ‘bootlegging’—kind has probably increased greatly,” the New York Times reported in 1925. “Some officials estimate that immigrants have been coming in clandestinely at a rate of at least 100 a day.”
Border patrols and deportations were increased to stop the flow of unauthorized immigrants, but they had little effect. “I’ve no doubt whatever that the man finally deported is back here,” the Assistant Secretary of Labor told the Times. “Easily 50 per cent of them return.” In July 1929, Congress gave in and provided “amnesty” or citizenship to the undocumented immigrants. Then, the Great Depression dried up demand for workers, temporarily resolving the issue.
When the economy finally picked up again following World War II, illegal immigration returned. This time, Congress opted for a different approach: admit more workers legally. Under the Bracero guest worker program, illegal immigration almost vanished as the number of Braceros soared to almost a half a million in the early 1960s (Figure 1). Apprehended Mexicans were directed to border stations to receive cards to enter legally.
Figure 1: Aliens Apprehended at the Border and Low-Skilled Guest Workers (Braceros & H-2s)
But the restrictionists wouldn’t allow the fix to last. Over the vigorous objections from the Border Patrol, they cancelled the program under the guise of protecting U.S. workers. Over the next decade, the entire legal flow (and then some) was replaced with immigrants entering illegally. By the 1980s, over a million people were crossing the border each year.
A Parade of Phony Solutions
Restrictionists refused to accept responsibility for this chaos and demanded a new law to restrict the flow and fine employers who failed to check workers’ IDs. In 1986, President Ronald Reagan, who believed in more open legal immigration, signed the law, while extracting a legalization concession for unauthorized immigrants.
But the law backfired. Before 1986, workers—first as legal guests or later as illegal migrants—would return home at the end of each harvest, and as Figure 2 shows, the total illegal population in the country grew only very slowly throughout the decade. (The drop after 1986 occurred due to the legalization.) But with more border guards, it became too risky and costly to circulate each year. Instead of not coming at all, immigrants came and built their lives here. “If enforcement efforts had remained at pre-1986 levels,” concluded Princeton University’s Douglas Massey, “there would have been 5.3 million fewer net undocumented entries.”
Figure 2: Unauthorized Immigrant Population and Number of Border Patrol Agents
The illegal population rose as fast as the number of border agents—both tripled between 1986 and 2000 (Figure 2). Not acknowledging their failure, restrictionists tried again, doubling the border agents over the next decade, which brought the level to ten times the amount in 1985. Immigrants continued to enter by the millions and the shadow population hit 12.2 million in 2007. As the cost of each crossing rose, cartels swooped in to capture the smuggling profits.
At the same time, the requirement that employers check IDs only created another black market in fake documents. Ignoring past failure, restrictionists doubled down in 2008, demanding a border fence and pressuring employers to use E-Verify, an employment verification system that checks Social Security numbers against federal databases. Rather than expunging the black market in jobs and documents, E-Verify has only ballooned yet another black market in identities.
Illegal immigration finally nosedived after the housing bubble burst, and the illegal population shrunk from 2007 to 2014. Meanwhile, ignoring the restrictionists, the Bush and Obama administration quietly resumed issuing many more work visas to Mexican workers. The result has been that just as many people were entering from Mexico in 2016 as in 2006, but most of them were doing so legally.
The Trump administration might want to undo this progress. With each new failure, restrictionists have never admitted that their core policy—restricting legal immigration—was the cause of all the others. Never mind that the Obama administration set records for deportations, it was never enough. Enforcement is the only tool in the restrictionist shed. Their many botched attempts to clean up their own mistakes is proof that they simply cannot fix the problem today.
Comments Off on Trump’s real immigration policy
All of my political predictions about Donald Trump were wrong. I predicted that he wouldn’t get the Republican Party nomination despite all of the polls to the contrary. I followed the polls closely during the election and thought Trump would lose. I was wrong again. While certainly no mandate, Trump won the election. Now the policies his administration will implement and push for are what matters. We have very little to go on when it comes to predicting his actions. Trump has no voting record on this and other issues. His statements, actions, a policy paper, and his staff picks are the best indicators of this actions.
My prediction is that Trump will increase the scale and scope of immigration enforcement, rescind President Obama’s executive actions or at a minimum not allow Dreamers renew their status, massively curtail or end the refugee program, and try to convince Congress to cut legal immigration. I’ve been wrong about Trump in the past and I hope I’m wrong here too. Let me lay out evidence that I think supports my pessimism and evidence that supports a more optimistic interpretation.
Optimistic Take: Why Trump Could Not be THAT Bad
Trump is not ideologically grounded except that he is a nationalist and a populist. Those political instincts usually manifest an anti-foreign bias in trade and immigration but they don’t have to. Trump has portrayed himself as a deal maker so it’s possible he’s staked out a harsh immigration position as a bargaining tactic to get concessions elsewhere.
He’s also made some statements in favor of immigration liberalization. In 2011 and 2013, Trump supported legalization for some illegal immigrants. He said Republicans have to do “the right thing” during the 2013 debate over comprehensive immigration reform but refused to elaborate on what he meant by that.
Trump flip-flopped on H-1B visas numerous times during his 2016 campaign, sometimes saying skilled migrants were great and that the United States needs more of them. In every case I’ve found, he then backtracked from the pro-H-1B position, repudiated his earlier statements, or repeated that they are taking American jobs. He’s also said that foreigners who attend U.S. universities should stay. Some lobbyists think Trump will not support broad immigration reform but that he might be persuaded to support liberalizing high-skilled immigration. Lobbyists should know those things but that could also be a public projection of confidence in order to maintain morale.
In his major immigration speech on August 31, 2016, in Phoenix, he said:
“And the establishment of our new lawful immigration system then and only then will we be in a position to consider the appropriate disposition of those individuals [illegal immigrants] who remain.
That discussion can take place only in an atmosphere in which illegal immigration is a memory of the past, no longer with us, allowing us to weigh the different options available based on the new circumstances at the time.”
“As far as moving these people out and moving, we either have a country or we don’t. We’re a country of laws. We either have a border or we don’t. Now, you can come back in and you can become a citizen. But it’s very unfair. We have millions of people that did it the right way. They’re in line. They’re waiting. We’re going to speed up the process bigly, because it’s very inefficient. But they’re on line and they’re waiting to become citizens.”
That sounds like he wants to deport them or force them to leave but then they can come back through the legal system. He’s made statements in support of letting the “good ones” come back a few times during the campaign, especially in the later stages. Allowing them to come back, especially after deportation, would require significant legal changes. His call to “speed up the process bigly” is encouraging though. Trump could soften his deportation plan much sooner than he let on here if he’s confronted with the logistical and humanitarian nightmare of deporting more than 11 million people.
Pessimistic Interpretation: Why Trump Will Probably be That Bad
Trump is a national populist with a zero-sum worldview. His long opposition to trade with Japan and now China and Mexico shows that he doesn’t understand how voluntary exchanges are mutually beneficial. Opinions on trade and immigration are tightly correlated. His 2013 statements on immigration reform could mean that he thought the Senate’s 2013 bill would destroy the Republican Party.
Trump’s immigration position paper is detailed, specific, and terrible. It supports drastic cuts in legal immigration and refugees as well as harsh new enforcement measures like a border wall, mandatory E-Verify, and a greatly expanded deportation force. Many think this plan was inspired by Ann Coulter’s recent book on the subject and some of his statements support that theory. In return, Coulter called Trump’s immigration position paper, “the greatest political document since the Magna Carta.”
When Trump looked like he was wavering from his immigration position in the final week of August 2016, Coulter mocked him. In her recent book In Trump We Trust, she wrote, “There’s nothing Trump can do that won’t be forgiven … Except change his immigration policies.” Trump’s response was a blistering speech in Phoenix on August 31, 2016, where he doubled-down on his immigration stance and even read out portions of his position paper. Coulter gave the speech her seal of approval, declaring it “better than Lincoln’s Gettysburg address.”
Virtually every time Trump looked like he was wavering in his opposition to legal immigration or stepped up enforcement, he quickly reversed course. When he has spoken off the cuff about immigration, it has almost always been negative and supportive of deportations, cutting legal immigration, and linking immigrants to crime. If speaking off the cuff reveals Trump’s real opinions then they are largely consistent with his policy positions.
Trump’s presumptive picks for positions in his administration are opposed to immigration reform, support more enforcement, and generally favor cutting legal immigration. Steve Bannon, the former executive chairman of the nativist Breitbart News and chief executive office of Trump’s 2016 campaign, looks to be on the shortlist for Chief of Staff. Breitbart’s immigration position is well known.
Trump’s picks for his immigration transition team are uniformly supportive of increased immigration enforcement and, as far as I can tell, large cuts in legal immigration. Kris Kobach is the first member of the transition team. He is the Kansas secretary of state and architect of many of the immigration enforcement laws around the country in the last decade. Just yesterday he said, “the wall is going to get built.” The second member of the transition team is Danielle Cutrona, the chief counsel in Senator Jeff Sessions (R-AL) judiciary committee.
The connection with Senator Sessions is important and it runs throughout Trump’s other appointments – the Senator himself could even be appointed to an important position. He is the most outspoken Republican Senator who opposes immigration reform, supports enforcement-first policies, and favors slashing legal immigration. Trump is reportedly also considering Stephen Miller, former communications aide to Senator Sessions, for one of many potential positions. Rick Dearborn, Sessions’ chief of staff, is also being considered for leading the office of legislative affairs.
There are also a few leaked lists circulating around DC that say Trump is supposedly considering Cindy Hayden as head of the Department of Homeland Security. There isn’t much information available on Ms. Hayden except that she was Sessions’ former chief counsel on the Senate Judiciary Committee.
Sessions’ praise for Ms. Hayden is deep and effusive. Upon her departure from the Senate in 2008, he said, “Cindy was just fabulous, and I depended on her. Day after day, her work and the respect she engendered throughout the country played a big role in the final result, in which the [immigration reform] bill was pulled down without passage in that form.” Senator Sessions himself wasn’t alone in his praise. He quoted his former chief counsel William Smith and executive director of the Americans for Limited Government Research Foundation at the time, “The only group I know that will truly celebrate her departure will be illegal aliens.” Brian Darling, then director of Senate Relations for the Heritage Foundation, was quoted as saying, “Without Cindy and ‘Team Sessions’’ tireless efforts to educate the American public on the contents of the secretly drafted amnesty bill, the bill may have become law.” Joe Matal, then-counsel for Senator Kyl was also quoted by Sessions as saying that, “If you look closely at the corpse of last year’s immigration bill, you will find a series of small squares holes in its back. Those holes were produced by Cindy’s heels, stomping that bill to death.”
Trump has frequently cited the Center for Immigration Studies, a think–tank that produces near–uniformly shoddy research and supports cutting legal immigration. It’s safe to assume that Trump facts, specific enforcement ideas, and message on immigration during his administration will be more influenced by them than any other group outside of the government. Ending or severely curtailing refugee resettlement will be an early move.
None of Trump’s actions since his election, from his statements to the people on his immigration transition team to those he’s considering for important positions, indicate that he is changing his position on immigration. Trump looks like he partially wavered occasionally on the campaign when it came to high-skilled immigrants and some form of amnesty. His instincts over the last several years show that his instincts aren’t uniformly nativist. However, those few bits of optimism are overwhelmed by his other statements and actions to the contrary.
Although I’m looking for reasons to be optimistic and I’m hoping my predictions about Trump continue to be as wrong going forward as they have been up to this point, the weight of evidence convinces me that his immigration policies will likely be just as bad as many of us feared. I hope he changes and will gladly eat many humbles pies if he does but I’m not going to skip any meals in anticipation.