Trump Doesn't Need Congress to Achieve His Immigration Goals
Now that the Democrats have won control of the House of Representatives (barely) it appears a near-certainty that President Trump will be unable to get anything done in Congress on immigration – no congressional funding for the wall, no statute ending chain migration or the visa lottery, no bill for him to sign adjusting downward the current, one million-per year-plus rate of legal immigration – in the next two years.
Of course, he wasn’t able to get any of that in the last two years, either, even though Republicans controlled both houses of Congress. The Republicans in Name Only (RINOs) – almost all of whom were defeated by Democrats Tuesday – blocked everything as surely as the Democrats will. They also kept trying to lead Trump into very bad compromises on immigration, “reforms” that essentially would have made the status quo – super-high immigration levels – never-ending. No doubt, the RINOs would have kept trying to do the same in the next two years, had they held on.
At least, now, Trump can blame inaction on Democrats. He and congressional candidates across the country can run in two years on immigration, which Trump knows is a winning issue for him, and if all goes well sweep into power with a mandate for reform the American people actually want.
A breather, a pause in mass migration – at the very least.
But in the meantime, he doesn’t need Congress to achieve just that result. And losing half of Congress should bring that remarkable legal fact into focus.
Remember the travel cases? At issue was whether Trump had the power to issue his Proclamation suspending the entry of aliens from several Muslim-majority countries. The Supreme Court held that he did have that power – a federal law clearly gave him authority to suspend the entry of any class of aliens, or even all aliens, into the country if he deemed doing so in the “national interest.” At most, Trump would need a rational basis for his restrictions – but the Court didn’t even find (as opposed to assume for the sake of argument) that he needed that.
In other words, the Supreme Court, in Trump v. Hawaii, crowned Donald Trump the immigration-restriction czar. And in doing so, it was only upholding the sweeping terms of the statute.
Sit quietly for a while and let that sink in. All by himself, Trump can bar any group of aliens he wants from entering the country, as long as he rationally believes that doing so is in the national interest. He can bar all those who lack a certain level of skills, or education, to protect the jobs and wages of the most vulnerable Americans. He can bar all those who do not have a job lined up in this country that cannot be filled by an American. He can bar all those likely to receive public assistance (in fact, he is already doing that, not by proclamation, but by regulation).
He can also build the wall – not by issuing a proclamation as immigration-restriction czar, but by declaring the border in a state of emergency (as he has done) and bringing in the U.S. Army to build it.
He can also, by regulation, end birthright citizenship for the children of illegal aliens and birth tourists, and perhaps also aliens here on temporary work or student visas. This step alone, which Trump has already said he will take, would end a huge incentive for illegal immigration.
He can, in short, over the next two years, pause mass immigration, both legal and illegal – all by himself, with no congressional approval needed.
Then – provided his measures are upheld by the Supreme Court, and that seems likely – he can say to the voters in two years: “I kept my promises. I built the wall. And in fact, now I am the wall – because of all those orders and proclamations I’ve issued making our immigration system serve the interests of the American people rather than special interests. Elect my opponent, and all that will vanish – the cheap-labor floodgates will open again.”
If Trump and enough like-minded Republicans won on that platform, then maybe they could, finally, enact a sensible, popular immigration agenda in the form of laws passed by Congress – laws that, like the current ones, would be very hard to undo.
Christopher J. Hajec is director of litigation at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.
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