Trump on Immigration: The Worst Policies Are The Most Clearly Lawful

Statue of Liberty
Credit: Celso Flores

How should we view President Trump’s immigration policies? Here are some thoughts.

Legality of the Executive Order

In my post on the prior incarnation of the Executive Order, I opined that much of it, while really bad from the perspective of policy or American values, was probably legal. The new order seems to me quite likely to survive a court challenge. It does not apply to lawful permanent residents or indeed to any current visa holders. It applies only to people applying for visas from the six affected Muslim countries and, of course, to refugees. And it provides for case-by-case waivers in cases of undue hardship. It seems to me that since no alien outside the United States has standing to sue for denial of a visa, the order probably passes legal muster. Is it a done deal? No. There may be a statutory question—not a constitutional question—about whether the law forbidding discrimination on the basis of national origin in the issuance of immigrant visas (but not non-immigrant visas), er, trumps the law that gives the president the power to suspend “the entry of any aliens or of any class of aliens into the United States” if he finds their entry “would be detrimental to the interests of the United States,” or vice versa. There may also be a question about whether statements by the president and his surrogates about the motivation of his immigration policy generally—to ban Muslims from entry—should be considered, and if so, how they affect the outcome. But the new executive order weakens such arguments by omitting the provision from the prior order that gave priority to persecuted religious minorities—Christians, basically—in the six listed countries.

Legality of the Stepped-Up Deportation Efforts

News reports have shown that many people in the country illegally who apparently pose no security threat, or who have families, have been deported or detained pending deportation. Some of the stories are heartrending. It’s clear that the Trump Administration has reversed the Obama Administration policy on prioritizing certain cases for enforcement. But it’s important to remember that the Obama policy was simply a question of prioritizing the use of scarce resources. President Obama lacked the power, without legislation, to confer legal status on those here illegally, and in fact I was always critical of his DACA program—Deferred Action for Childhood Arrival, meant to provide protections to the so-called “Dreamers”— as executive overreach. A reprioritization of enforcement efforts may be unwise, unjust, immoral, and un-American, but it seems to me to be unquestionably legal.

That’s not to say there are no legal issues with the stepped-up enforcement campaign. Some of the people detained have already had a hearing before an immigration judge and been ordered removed, and I see no due process challenge in those cases, but it seems that the government is also seeking to broaden the class of people subject to “expedited removal” (the statute authorizes the Attorney General to apply expedited removal to aliens present in the US for less than two years, but until now it has applied to aliens present for less than 14 days). I haven’t looked into it, but I think it’s highly plausible that someone in the United States for two years may well have due process rights and that expedited removal may well be unconstitutional, especially as applied to those with more substantial ties with the United States. But fundamentally, this administration’s decision to enforce the law more vigorously than the last is, well, legal as far as I can see.

Legal, But …

Despite everything I’ve written so far, I am more worried about the direction of immigration policy than I am about many other Trump Administration policies. We are putting at risk our “number one,” the thing that makes us most special, the core of what it means to be an American both in the eyes of us Americans (almost all of whom are immigrants or the descendants of immigrants) and in the eyes of the world. You don’t hear about people all over the world waiting in line for years to get immigrant visas to Russia, or China, or many other countries. People all over the world know that the poor, the oppressed, and those with big dreams can come to America and make a life for themselves. People understand that there are numerical limits—not everyone can come all at once!—but the New World has been irresistibly attractive to people all over the world. And our openness to immigrants of all creeds and nationalities has won us friendship and support all around the world. Is some of this idealized, rah-rah American boosterism? Yes! But I’m talking about our self-image and our image around the world, not the sometimes depressing and bureaucratic reality of the immigration system in practice.

I’ve seen this myself a few times recently:

  • On a recent business trip, I was talking with the guy driving me to the airport. He was a Moldovan who had come to the United States about a year ago and had worked hard since arriving to learn English. He entered the green card lottery about ten years ago, but things were so depressed in Moldova that he had moved to Italy and taken a job there. But when word came that he had won the lottery and could come to America, the choice was easy. He dreams of starting his own construction business, and he hopes to be able to sponsor his wife for a visa soon.
  • At a dinner with friends, I met a gay man from a conservative Muslim country who had had to flee for fear of his life and who had gotten asylum in the United States. Nonprofits and regular people in our local community helped him get settled and have taken him under their wings. He’s applying to college and is on his way to making a new life for himself.

We are on the verge of doing incalculable damage to our own self-image and to our image and influence around the world by giving people reason to think that we are not open to newcomers, that we are pulling up the drawbridge. Once lost, it’s hard to know whether we could ever win this advantage back. We don’t want a world where the dreamers and strivers dream about and strive to get to someplace else. This is why I think that the apparent legal soundness of much of this administration’s (new) immigration policy is beside the point. But the problem, in my mind, is cultural and political, not legal.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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