For decades, the American people have been at odds with their elected lawmakers over immigration. Only a small minority of Americans—about one-fifth to one-fourth—want to see immigration levels increased. And yet, until now, the immigrant share of the population kept trending upward as Congress, including many of the Republicans in it, considered bills that would dramatically increase legal immigration and grant amnesty to those who came here illegally. More than once, an intense public outcry was needed to keep these bills from becoming law.
However offensive his words could be, Trump got attention during the campaign by issuing a core promise that he would close this gap. Last week, through his executive actions on the subject, he showed every indication that he meant it.
As the chaos this weekend demonstrated, this will be a very long road. Almost by definition, executive actions raise serious concerns about the proper limits of the president’s power, and conservatives should join liberals in keeping an eye on Trump as he implements them. In general, these measures fall within the president’s traditional authority and are defensible on the merits, but there are genuine problems with some provisions.
Let’s start with the order announced Friday that resulted in mass confusion and outrage. This measure pauses the inflow of all refugees, and of travelers from seven countries that were already considered high-risk, for several months while a system for “extreme vetting” is worked out. It also bans Syrian refugees indefinitely. Exceptions will be made to honor preexisting international agreements, to admit persecuted religious minorities, and otherwise on a case-by-case basis. Once refugee admissions resume, they will be capped at 50,000 this year, which is less than half what Obama chose before leaving office but not so far below the norm for the past 15 years.
A debate rages over various arguments that the order is illegal, but limiting immigration for national-security reasons is an area where the president has a lot of discretion. There has also been much wailing and gnashing of teeth over the fact that these countries are majority-Muslim, but as Vox’s Dara Lind points out, “most Muslim-majority countries, including the most populous ones (Indonesia, Bangladesh, and Pakistan), are not included on the list of barred countries.”
Whatever nonsense Trump spewed during the campaign about banning all Muslim immigration, in other words, this action is limited to countries at an elevated risk of sending us terrorists. Philip Giraldi, a former CIA officer who has worked in visa lines, laid out the case for this sort of temporary measure in TAC last year. He emphasized the difficulty of vetting immigrants in countries where documents cannot be verified and many show up with no documents at all.
Today, though, Giraldi raises good questions about the specifics of the rule, including the collection of countries Trump chose to restrict. Further, the administration waffled on whether the ban applied to lawful permanent residents—at this writing, the final word seems to be that it does not—and the immigration system struggled to deal with people who were traveling when the rule was signed. There were countless reports of travelers held up or stranded at airports. Several judges have issued orders protecting people who already had arrived or been approved to live here.
One wonders why the order didn’t exempt green-card holders explicitly or at least give travelers notice before the changes went into effect. Reports indicate that it was not reviewed by the relevant agencies before being signed.
Another of Trump’s measures instructs the Department of Homeland Security, “to the extent permitted by law,” to begin the process of funding, studying, and building a border wall. The executive branch can rearrange funding streams to some extent, though Congress will have to approve substantial changes. Trump won’t be able to fund the entire project this way—there isn’t anywhere near enough money available without congressional appropriations (which Republican lawmakers favor)—but the action gets the ball rolling and sends a strong signal to Congress that Trump really plans to secure the border.
Congress needs a strong signal. A little-known fact is that there already is supposed to be fencing along 700 miles of the 2,000-mile Mexican border, as ordered by Congress in 2006. However, Congress promptly gutted that law, allowing the executive branch to use easily breached barriers—sometimes just a vehicle barrier, sometimes a weak pedestrian fence that smugglers could simply cut holes into—instead of the security fencing that has proven effective near San Diego and in Israel, where a fence reduced suicide terrorism. (See Daniel Horowitz at Conservative Review for a thorough account of the saga.)
Yet another measure lays out Trump’s plan to take federal funding away from “sanctuary cities.” These are casually defined as cities that refuse to help the federal government enforce immigration law. In the order, however, they are defined as cities in violation of a specific federal law, which holds that state and local governments can’t stop their employees from sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” with the federal government.
Depending on how it’s implemented, this policy could raise a number of issues. Henry Grabar of Slate worries that the administration will “try to argue that a broad range of noncompliance policies”—including the refusal to detain people at the federal government’s request—violate the federal law. George Mason law professor Ilya Somin argues that the law itself is unconstitutional, as it commandeers state and local officials to enforce federal law, a concern that traditionally has received conservative sympathy. Somin also writes that “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.’ … The executive cannot simply make up new conditions on its own and impose them on state and local governments.” Court precedent further requires that funding conditions be relevant to the purpose of the project.
Obama’s two “deferred action” projects, by contrast, are an area where we didn’t see action from Trump. These granted de facto amnesty to many unauthorized immigrants. One focused on people who were brought to this country illegally as children, essentially enacting Congress’s failed DREAM Act bill from the White House. The other focused on the illegal-immigrant parents of children who were citizens or lawful residents (a common situation because all children born in the U.S. are granted citizenship). This second one is currently held up in court.
These were utterly lawless power grabs on the previous president’s part, and Trump would be entirely within his rights to wipe them away. Amnesty for these sympathetic populations is something for Congress to bestow, not something for the president to grant on his own by refusing to enforce the laws he is sworn to faithfully execute.
Yet Trump has put off a decision on these policies for up to four weeks. During the campaign he vowed to end deferred action, but also to “work something out” for the so-called DREAMers. Maybe he wants to repeal and replace the policies at the same time, so to speak.
I haven’t gone into all the details of the actions here. They would also increase the deportation of criminals, end the “catch-and-release” policy (through which arrested illegal immigrants are released on the assumption they’ll voluntarily show up for their deportation hearings), and hire more Border Patrol agents, for example. All these are commonsense measures, though the details generate plenty of complications.
Nonetheless, all this is just a start. Trump will need to secure buy-in from Congress for many of these measures, because Congress ultimately holds the power of the purse. He’ll also need to smooth over objections raised by other countries—especially Mexico, whose president canceled a meeting with Trump last week in protest. But at the very least, they show Trump’s clear intention to finally impose order on our immigration system.
Robert VerBruggen is managing editor of The American Conservative.