Joe Biden largely campaigned on restoring the status quo ante in Washington, so naturally one of his first proposals is for the sort of “comprehensive immigration reform” that was a staple of the pre-Trump years.
George W. Bush pushed a “comprehensive” bill and failed. So did Barack Obama. Biden picks up where they left off, except with a proposal — and this will be a theme — that is further to the left than the prior bills.
The key, if always dubious, promise in past legislation was to implement enforcement provisions before or alongside an amnesty for illegal immigrants. Biden’s plan doesn’t even bother pretending. It discusses upgrading technology at the border, the bare minimum of enforcement window-dressing, while proposing an amnesty for more than 10 million people.
Although the details are yet to be written into legislation, it’s hard to exaggerate how sweeping this proposal is. It would apply not just to illegal immigrants who have been here for years and become embedded in their communities, but to illegal immigrants who showed up the day before yesterday — the cutoff for the amnesty is January 1, 2021. Even this requirement may be waived for illegal immigrants who were deported on or after January 20, 2017 but resided in the United States three years prior to that.
Biden doesn’t want to give temporary legal status to illegal immigrants. He wants to give them green cards and then, after a period of years, make them eligible for citizenship. This would precipitate a wave of follow-on immigration. Green-card holders can petition for spouses and minor children to come to the United States, while citizens can petition for parents and siblings, as well.
It’s an unwritten rule that comprehensive immigration bills must always increase levels of legal immigration, too, and sure enough, the Biden proposal would loosen and lift various restrictions and caps in the legal system.
The proposal’s gesture toward stemming the flow of migrants from south of the border is to increase foreign aid to El Salvador, Guatemala, and Honduras. We should do what we reasonably can to assist the development of these countries, but we shouldn’t pretend that this is any kind of short-term solution to migration. Even if these countries were to experience more economic growth right away, the immediate effect would likely be to increase migration as more people would have the resources to attempt to come north.
In a move worthy of an apparatchik at Oberlin College, Biden also wants to eliminate the term “alien” from the U.S. code on grounds that this longstanding, perfectly good term is offensive and exclusionary.
There is a good case for a carefully tailored amnesty for the illegal immigrants who have been here the longest, coupled with real enforcement measures like E-Verify and an exit-entry visa system. This is not even close to that.
At least the proposal furthers Biden’s goal of unity in one respect. It should unite Republicans and all supporters of a sound immigration system in determined opposition.
Lax immigration enforcement under Biden could bring about a new border crisis
New data from the Department of Homeland Security capture the changing face of illegal immigration, revealing dramatic shifts that will shape President-elect Joe Biden’s hopes for comprehensive immigration reform.
The report from the Office of Immigration Statistics captures a transition as the share of lone adults, particularly from Mexico, declined, replaced by children and adults traveling with them from the “northern triangle” countries of Guatemala, Honduras, and El Salvador. That change in turn has led to a dramatic decline in the number of individuals reported, as members of the latter group rely on more accommodative legal protections to remain in the country far longer than the former.
The report also shows that individuals who were not detained after apprehension are much more likely to still be in the country. That’s a sign, acting deputy homeland security director Ken Cuccinelli wrote, that “catch and release” policies do not work.
That such policies, including an expansion of the use of “alternatives to detention,” are top of the Biden immigration agenda augurs poorly for the incoming president. The challenges that changing migration patterns posed to the Obama and Trump administrations are unlikely to go away under Biden, teeing up yet another border crisis and ensuing political meltdown.
The report combines data from myriad sources to track the “lifecycle” of would-be entrants apprehended over the past five years at the southwestern border, providing information on the immigration status of some 3.5 million apprehensions. Its coverage bookends two major migrant crises: a surge of unaccompanied minors in 2014, and a much larger surge of both families and unaccompanied kids in late 2018 and early 2019.
These two crises are part of the changing face of migration. Whereas in the period of 2000 to 2004, 97 percent of all those apprehended were Mexicans—many of them lone adults seeking work—by 2019 that share had dropped to just 24 percent. By contrast, arrivals from the “northern triangle” countries rose from 44 percent of apprehensions in 2014 to 64 percent in 2019, amid the second crisis. Many of these individuals were children, often quite young, and adults traveling with them, claiming to be their family members.
Those demographic differences strongly determine what happens to an individual after he or she is apprehended. Single adults are quickly deported, with 78 percent of those apprehended over the preceding five years repatriated by Q2 2020. But family arrivals and children are not—just 32 percent of the latter, and only 11 percent of the former, had their cases resolved as of Q2 2020.
Such migration is likely to rise under Biden, who has promised to substantially reduce immigration enforcement and intends to pursue an amnesty, both of which could incentivize further arrivals. Data from U.S. Customs and Border Protection show that apprehensions at the border rose year-on-year in the immediate lead-up to and aftermath of Biden’s election, which may indicate a rising tide of migrants eager to take advantage of a more lax immigration regime.
Those arrivals will enjoy the same preexisting immigration challenges that the Center for Immigration Studies’ Andrew Arthur identified as driving the low number of deportations for families and children. “Loopholes” in federal immigration law incentivize the bringing of children from noncontiguous countries and delay almost indefinitely their immigration court process.
In particular, abuse of the asylum system, and of provisions which require the release from detention of minors and their guardians, results in large populations who arrive, are released, and never show up for subsequent immigration processing. According to the report, just 1 percent of those detained had unexecuted removal orders, while 55 percent of those released were still listed as unresolved.
The reason for this dynamic is not that those who arrive at the southwestern border have reasonable claims to be asylees: Just 14 percent of initial applicants are eventually granted asylum. Similarly, among those cases resolved, roughly 13.6 percent were granted some relief, while the rest were summarily deported.
In other words, the report indicates a large and persistent challenge to the U.S. immigration system, with an ever-growing pool of illegal entrants and an ever-expanding backlog of immigration court cases jamming up the process of legal immigration and the limited resources of DHS.
That dynamic is likely to continue, and even expand, under the Biden DHS. Biden’s promised undoing of many of President Donald Trump’s tougher enforcement tools, including the “Remain in Mexico” policy and the limitation of “reasonable fear” asylum claims, could exacerbate the inflow of people driven by the “loopholes” Arthur and Cuccinelli identify. So too could the deployment of “alternatives to detention,” which Cuccinelli specifically singled out as problematic.
The Biden team, likely spooked by the surging apprehension numbers, has signaled that it will slow-roll the undoing of Trump’s immigration agenda. But it has not promised any of the “targeted legislative fixes” endorsed by Cuccinelli in his letter, leaving in place the adverse incentives. That could lead to another humanitarian crisis at the southwestern border—a ticking time bomb Biden’s team has evinced little interest in defusing.
The issue driving the populist revolt has disappeared in 2020
It is a sign of the times that immigration has not been mentioned in three hours of debate between the presidential tickets. A review of the transcripts of both the presidential and vice-presidential encounters finds no questions asked nor answers proffered about an issue that until only recently defined much of our politics and distinguished our two parties. Needless to say, both moderators wanted to know where the candidates stand on climate change, which routinely drifts toward the bottom of any list of public priorities.
Why the omission? It is tempting to say that immigration did not come up because the elites who manage the presidential debates are uncomfortable with the topic, are worried that the issue favors Republican border hawks, and are more interested in subjects relevant to their cultural coterie. But it is also true that presidential debates tend to focus on current events and pressing challenges, and that immigration just does not seem as great a concern today as the coronavirus, the economy, race relations and civil unrest, and California brushfires.
The apparent irrelevance of immigration and border security to the election might also be attributed to the achievements of the Trump administration. But these achievements are partial, tenuous, and dependent on events and relationships and court decisions. And they are easily reversed. What should worry the president is that the somnolence on the border deprives him of the very issue that propelled his rise to power, and that drove the populist revolt against the Washington establishment whose offshoots included the Ron Paul candidacies, the Tea Party, and Republican victories in 2014 and 2016. Immigration is next only to the economy and to the courts as a place where the president can contrast his record and agenda with Biden’s and appeal to national solidarity and historical tradition. His parlous electoral status may be related to the fact that immigration is not much of a factor in this most unusual campaign.
There is no gainsaying immigration’s importance to the Trump presidency. It was immigration that triggered the grassroots rebellion against the George W. Bush and Barack Obama administrations, and against congressional supporters of amnesty for illegal immigrants, culminating in Trump’s 2016 primary victory. Immigration became the touchstone of Trump’s campaign on day one and served as the cudgel by which he defeated Jeb Bush and other Republicans for whom the Bush-Obama approach to legalization was correct. The border wall was not only a rallying cry but also a symbol of how a Trump presidency would privilege American citizens above all else. And Trump fused immigration to economics, by opposing H-1B visas; to crime, by highlighting gang activity; and to national security, by enacting his travel ban against countries that sponsor terrorism.
When Kamala Harris offhandedly mentioned the travel ban during the vice-presidential debate, it almost seemed like an anachronism, so far removed are we from the world of January 2017. The coronavirus imposed its own sort of prohibition. It radically interrupted the mechanisms of globalization, including the flow of labor. Global air travel plunged, and so did apprehensions along the southwest border. The virus ushered in a condition of emergency, in which the Trump administration tightened visa and asylum procedures.
The pandemic accelerated an ongoing trend. The growth in the illegal immigrant population appears to have stopped abruptly during the 2008 global financial crisis and has trended slightly downward since. The composition of that population has also changed, from able-bodied men seeking work to women, children, and the impaired fleeing gangs and state collapse. Border crossers are less likely to be Mexican and more likely to be from Central America or Asia. The Trump administration’s wide-ranging actions, in particular its Migration Protection Protocols, further discouraged unauthorized entry. By 2019, according to the Brookings Institution, the net increase of immigrants in the U.S. population was at its lowest level in years. (And, it might be added, the best job market in half a century was producing income gains across the population.) There is every reason to expect that the combined effects of the pandemic, the lockdowns, and executive orders will keep the number of migrants low.
But for how long? Harris attacked Trump for his “Muslim ban,” but she did not say on stage what the Biden administration would do about it. For answers, one has to turn to the Biden-Harris campaign website. There, the Democrats write that they would “rescind the un-American travel and refugee bans, also referred to as ‘Muslim bans.'” They would “end Trump’s detrimental asylum policies,” including the Migrant Protection Protocols. They would reverse the public charge rule, which makes it harder for welfare beneficiaries to become permanent residents. They would halt construction of the border wall and “direct federal resources to smart border enforcement efforts, like investments in improving screening infrastructure at our ports of entry.” They would reinstate the DACA protections for illegal immigrants brought here as children, and for their parents. And Biden and Harris would “create a roadmap to citizenship,” not permanent legal residency, for the remaining millions of illegal immigrants “who register, are up-to-date on their taxes, and pass a background check.”
In short, a President Biden would return immigration policy to the status quo before Trump. With this difference: Biden, unlike Obama, would be dealing with a Democratic Party whose left wing has been radicalized and includes prominent officials who support such extreme measures as decriminalizing border crossing and abolishing U.S. Immigration and Customs Enforcement. Senator Harris herself has called for “restructuring” ICE (and for abolishing private health insurance, banning fracking, and imposing universal background checks for gun purchases through administrative fiat). The leftward drift of the Democrats makes immigration politics more fraught, and more polarizing. Having learned nothing from the Trump phenomenon, Biden and Harris are eager to reinstate the exact policies that gave birth to it.ADVERTISING
The failure to control the border and to think politically, rather than economically, about immigration was part of a larger failure. Republican and Democratic elites neither recognized nor acknowledged that the globalized world of the 21st century, while beneficial to them, carried costs for large parts of the population far greater than they had assumed. It is therefore ironic that a pandemic originating in China, which America treated for too long as a “responsible stakeholder” rather than a revisionist great power, has overwhelmed practically every issue but the economy in the final month of the election.
If the Trump campaign fails to raise the question of immigration, the Democratic establishment that stands to gain from the public’s judgment of the president’s coronavirus response will happily ignore it. But they will not be able to avoid immigration forever. Or the furies it unleashes.
According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult -- especially for their successors.
Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.
Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.
That incredible outcome is essentially what happened with the Supreme Court decision last week in Department of Homeland Security v. Regents of the University of California (the latter being my employer, I might add). Regents blocked President Trump’s repeal of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which halted the deportation of aliens brought to the U.S. illegally as children, and a parallel 2014 program that suspended the removal of their parents (DAPA). Until the Trump administration goes through the laborious result of enacting a new regulation to undo DACA and DAPA, approximately 6 million aliens can remain in the U.S. in defiance of federal immigration statutes.
While supporters of broader, more humane immigration policies (among whom I count myself) may have welcomed the result, they may well regret the Court’s disruption of executive power. President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.
According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.
Such a rule upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. The Constitution, for example, contains no system for undoing a statute. When Congress wants to repeal a law, it must pass a new law through the same process of bicameralism (House and Senate approval) and presentment (presidential signature). The Supreme Court effectively repeals past opinions simply by overruling the earlier case, though the Constitution does not expressly provide for such reversals. Brown v. Board of Education famously overruled Plessy v. Ferguson’s rule of separate-but-equal. When a president wants to repeal an executive order, all he need do is issue a new executive order. When agencies want to reverse a regulation, they must resort to the same sluggish method of notice-and-comment rulemaking.
If anything, constitutional law grants presidents the power to reverse the acts of their predecessors even faster. Although Article II of the Constitution requires cabinet officers to undergo both presidential nomination and Senate advice and consent, practices from the earliest years of the Republic as well as Supreme Court precedents recognize the executive right to fire them unilaterally. A president similarly can terminate treaties, as Trump recently did with the Intermediate Nuclear Forces agreement with Russia, even though treaties must also receive Senate approval.
Recognizing a plenary power to reverse previous presidential acts, contrary to the Supreme Court’s DACA rule, comports best with the purposes behind the creation of the executive branch. The Framers created an independent executive branch that could act unilaterally and with dispatch because the president’s swift action was desirable in the execution of his constitutional and statutory responsibilities. They wanted each president to be fully accountable to the electorate for his actions without any diffusion of responsibility. The same reasons that support unitary executive action in the first instance support its potential unilateral reversal. A president may need to reverse his predecessor’s decisions quickly to protect national security or take advantage of a great opportunity.
The Framers’ careful protection against arbitrary government would be turned on its head if one president could insulate his unilateral policies against reversal by a subsequent president — for then the constitutional difficulty of enacting a statutory override would further entrench a tyrannical executive policy against electoral or statutory change.
It is important to understand that this principle applies even more strongly in the case of illegal presidential action. The Constitution vests in the president the responsibility to “take Care that the Laws be faithfully Executed.” The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress. Upon taking office, for example, President Thomas Jefferson immediately ended all prosecutions under the 1798 Sedition Act, which had made criticism of the government a crime, and pardoned those convicted under it.
This allocation of the power to execute the Constitution to the president reveals the perversity of Chief Justice Roberts’s opinion in Regents. It forces President Trump to enforce an executive program that he believes violates the Constitution and federal immigration law, and hence it forces President Trump to violate the Constitution. This is doubly perverse because Trump supports a legislative solution that would allow DACA and DAPA beneficiaries to remain in the country. Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.
The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times. But Obama’s claim flew in the face of the Constitution by claiming that he could bring the enforcement of a federal law — here the removal provision of the immigration laws — completely down to zero.31
If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration.
Trump’s rationale was correct: President Obama had no constitutional authority to refuse to enforce the immigration laws against whole classes of aliens, amounting to 50 percent of the possible removal cases. As the Court in Regents concedes, he had intruded on Congress’s constitutional prerogative to set immigration levels and to establish visa categories. As the lower courts had found, President Obama failed to live up to his constitutional responsibility to take care that the laws are faithfully executed. In such a situation, the Constitution compelled Trump to restore immigration enforcement to pre-DACA and pre-DAPA levels. By ignoring these aspects of the Constitution and presidential power, the Regents Court may have inflicted a harm on the nation that goes far beyond immigration law.
Cartels in Mexico aren’t just fighting over drugs, they’re fighting over industries, and it might well trigger a new and much bigger migrant crisis on the U.S. border.
Two important and interrelated news stories largely passed under the radar Wednesday as the House impeachment hearings continued to dominate the headlines. Both stories concern the deteriorating state of affairs in Mexico and have huge implications for immigration, the southwest border, and U.S. national security. It’s a shame more Americans aren’t paying attention.
The first was a report from BuzzFeed that as of Wednesday the Trump administration began carrying out a controversial plan to deport asylum-seekers from El Salvador and Honduras—not to their home countries, but to Guatemala, which the administration has designated a “safe third country,” meaning that migrants from those countries must first apply for asylum in Guatemala before seeking asylum in the United States.
The move is part of the administration’s broader strategy to reduce the number of Central Americans seeking asylum at the southwest border, which last year saw a dramatic increase in illegal immigrationlargely driven by families and minors from the so-called Northern Triangle countries of Guatemala, Honduras, and El Salvador.
The second story was a Los Angeles Times dispatch from the Mexican state of Michoacán, where rival cartels are waging war not over drug trafficking routes but over control of the multibillion-dollar avocado industry. More than a dozen criminal groups are fighting over the avocado trade in and around Uruapan, the capitol of Michoacán, “preying on wealthy orchard owners, the laborers who pick the fruit and the drivers who truck it north to the United States,” writes reporter Kate Linthicum. Organized crime in Mexico, she explains, is diversifying—it isn’t just about drugs anymore:
In parts of Guerrero state, cartels control access to gold mines and even the price of goods in supermarkets. In one city, Altamirano, the local Coca-Cola bottler closed its distribution center last year after more than a dozen groups tried to extort money from it. The Pepsi bottler left a few months later.
In Mexico City, bar owners in upscale neighborhoods must pay taxes to a local gang, while on the nation’s highways, cargo robberies have risen more than 75% since 2016.
Compared with drug trafficking, a complex venture that requires managing contacts across the hemisphere, these new criminal enterprises are more like local businesses. The bar to entry is far lower.
The report also notes that homicides are at an all-time high in Mexico, and that cartels have taken control of migrant smuggling in the state of Tamaulipas, which borders the Texas’s Rio Grande Valley, the busiest stretch of the border for illegal immigration.
All this comes on the heels of the massacre of an American family in Mexico, including three women and six children, earlier this month by cartel gunmen, as well as the defeat of a detachment of the Mexican National Guard by cartel forces in the city of Culiacan last month. Mexican President Andres Manuel Lopez Obrador has no strategy to reduce cartel violence and no intention of fighting the cartels.
So what do these two news stories from Wednesday have to do with one another, and why would they have major implications for the United States? Simply put, what has happened in Central America is now happening in Mexico. The difference is, when asylum-seekers from Mexico start turning up on our border we won’t be able to deport them to a third country or easily turn them away. If you thought the border crisis was bad last year, wait until hundreds of thousands of families in Michoacán and Tamaulipas decide to flee the cartels and seek asylum in the United States.
To really appreciate the gravity of the situation in Mexico you have to understand some of the dynamics behind the border crisis, which has been driven by Central Americans fleeing societies that are in a state of collapse. Widespread extortion, kidnapping, and violence from gangs throughout the Northern Triangle, combined with grinding poverty and scarce economic opportunities, has prompted hundreds of thousands of Central American families to head north.
One of the reasons this mass exodus turned into a crisis is that unlike earlier waves of illegal immigration, these migrants weren’t single adults from Mexico who could be quickly deported under U.S. law. They were migrant families and minors seeking asylum from noncontiguous countries, which meant they had to go through an entirely different legal process that takes much longer.
The Trump administration, like the Obama administration before it, faced a choice: either release large numbers of people who had crossed the border illegally or detain them in inadequate facilities that were never designed to hold children and families. The administration responded with a host of new policies, some of which have been struck down by the courts, designed to deter Central American asylum-seekers and reduce illegal border-crossings.
Designating Guatemala as a safe third country is one of those policies, despite the reality that Guatemala is by no means a “safe” country (like El Salvador and Honduras, it’s one of the most violent countries in the world). The Migrant Protection Protocols, also known as “remain in Mexico,” is another such policy, which forces asylum-seekers to await the outcome of their case in Mexico, often in dangerous border cities where they are vulnerable to exploitation by cartels and corrupt officials.
The upshot is that as Mexico descends into warlordism marked by widespread criminality and gang warfare, we should expect ordinary Mexicans to respond the way ordinary Central Americans have. Eventually, they’ll leave. Many of them, perhaps hundreds of thousands, will at some point head north and claim asylum. When they do, the border crisis that we’ve been dealing with for the past year will seem insignificant—a prelude to a much larger and intractable crisis, for which there will be no easy fix.
A vexed Supreme Court is now considering the legal status of the highly popular program, Deferred Action for Childhood Arrivals, better known as DACA. DACA’s survival is now up for grabs in three related cases before the Court, which are being consolidated under the name Department of Homeland Security v. Regents of the University of California. The Court displayed its angst about the legality of DACA during last week’s oral argument for the case.
In June 2012, President Barack Obama initiated the program whereby children who were brought into the United States illegally became eligible to remain for two-year renewable periods so long as they did not committed any felonies or misdemeanors. As designed, the program does not offer these “Dreamers” a path toward citizenship, but it does authorize them to get jobs, obtain driver’s licenses, social security, and a host of other privileges. There are now close to 700,000 Dreamers in the United States, and they have often excelled, as students, military personnel, and workers. Most emphatically, they are not “far from angels,” let alone “hardened criminals,” as President Trump scandalously tweetedon the day of oral argument.
Fortunately, the debate before the Supreme Court rose above that low bar. At issue was the Dreamer’s “reliance interest” in the continuation of the DACA program. The notion of a reliance interest is old and runs throughout the law. It holds that a claim that is otherwise imperfect becomes fully protected once the recipient relies on the promises or actions of the defendant—here the government—to its detriment, and thus cannot be returned to his original position. As a substantive matter, I think that DACA was a welcome modification of national immigration policy. But as a legal matter, the issue is more complicated.
Of course, Trump’s election as president marked a dramatic reversal in immigration policy. In September 2017, Trump gave Congress six months to come up with a legislative solution to the DACA issue, which, to him, boils down to the simple fact that the Dreamers, having come to the United States illegally, have no right to remain in this country. No such deal was worked out, and the Trump administration issued an order to terminate the program. The order was promptly postponed in the lower courts on the ground that Trump was not exempt from the Administrative Procedure Act of 1946, which provides that a court “shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
What is odd about the current dispute before the Supreme Court is that it subjects the Trump administration’s DACA decision to close scrutiny without once asking whether the same level of scrutiny should have applied to then-President Obama’s decision to create DACA in the first place. It is still an open question whether or not Obama had such legal authority in June 2012 to issue his own executive order. On multiple prior occasions, as in October 2010, Obama had repeatedly denied that he had the power to remove or alter the legal status of these individuals by saying “I am not king. I can’t do these things just by myself.” Yet less than two years later, Obama reversed himself and unilaterally imposed a new legal regime under the fig leaf that he was only exercising the most traditional form of prosecutorial discretion, whereby a prosecutor may decline to pursue a case under the law if he thinks that the evidence is not strong enough to warrant pursuing the case, or that other matters have higher priority.
But the outer limits of that discretion is a decision not to prosecute, not on the strength of individual facts, but for an entire class of persons, such as the dreamers. I regard this practice as questionable at best. If a president can refuse to deal with minor, non-violent offenses, can he also refuse to prosecute serious offenses because he thinks that the penalties are too steep? But even if he can rethink prosecution for broad classes of cases, he may not unilaterally change the status of illegal aliens (the statutory term) under state law.
As such, in my view, the DACA program was flatly illegal at the time it was first issued, because no amount of administrative review under the APA could cure this initial defect by making administrative findings about the strength of the supposed reliance interest. Yet, it was not possible for anyone to immediately challenge the program on its face before implementation. The reason for that is the standing doctrine engrafted onto Article III of the Constitution that restricts access to the federal courts to cases in which there are concrete and discrete “injuries in fact” to a particular person that are traceable to government action and capable of remediation in the event of a favorable decision. In the case of DACA, this standing doctrine means that the case can only be brought by some party that suffers that kind of discrete injury, which cannot be any general member of the public at large.
This narrow interpretation, however, misreads the key language of Article III, which states that “the judicial Power shall extend to all Cases in Law and Equity” that arise under the Constitution. The requirement of particularized injury is satisfied whenever an individual is subject to a deportation under the immigration laws. But the limited definition of standing—itself a term nowhere found in Article III—ignores the phrase “in equity,” which has long included challenges against ultra vires action—those beyond the power of any corporation, charitable organization, or local government. In other words, the legality of DACA should in principle be subject to challenge by any citizen who thinks that the program is illegal. If many such cases are brought, they can be consolidated into a single proceeding.
Accordingly, no recipient of DACA benefits could challenge the statute, and it is a tough sell to say that a state has standing to challenge the statute simply because it must issue driver’s licenses to Dreamers. While the driver’s license argument was accepted in 2015 by Judge Jerry Smith of the Fifth Circuit in Texas v. United States, a case which challenged DACA-spinoff program DAPA (Deferred Action for Parents), its thorough examination is of limited precedential value because its judgment was affirmedone year later, without opinion, by an evenly divided Supreme Court.
The standing issue would be trivial, however, if any citizen of the United States was entitled to challenge the illegality of any presidential order. Accordingly, the correct procedure needs an expedited review of DACA’s constitutionality before it was put into place. It is always easier to decide on the legality of a program before it is implemented, not afterwards.
Unfortunately, that did not happen. Hence the glacial pace at which DACA reached the Supreme Court has made it plausible for individual DACA claimants to insist that their reliance interest should force the Trump administration to do what the Obama administration never did— namely, give a set of reasoned justifications under the APA for reversing Obama’s original DACA order.
But their argument is suspect on two grounds. The first is that the reliance interest claim is weak in this context. There are all sorts of ways for individuals to rely on the decisions of other parties in organizing their own conduct. Company S, for example, contracts with local government L to remove snow from the streets. The contract lasts for several years, during which time X buys an automobile that he parks by the street. If L and S agree to reduce the frequency and quality of the snow removal services, X does not have a claim against either solely because he relied on their joint decision when he purchased his automobile.
In the language of contract law, a Dreamer is an “incidental beneficiary” who does not acquire rights against the government simply because the past implementation of DACA improved the Dreamers’ overall position. It is perfectly rational for every DACA recipient to take full advantage of the program. But it is not possible for them to claim that their past good fortune gives them any future entitlement to program continuation. Any waivers of enforcement power in two-year chunks can be stopped at any time.
The point has not been lost on defenders of DACA who grimly understand that the whip in all immigration cases lies with the President, such that the best they could hope for is a delay in action whereby the Court insists that the Trump administration offer a more detailed justification for its decision. Indeed, one reason why the oral argument proved so frustrating is that there was still judicial doubt—as expressed by Justices Ginsburg, Sotomayor and Kagan—as to whether the Obama program was illegal when issued. Hence Justice Ginsburg pressured Solicitor General Noel Francisco to explain the “strange element” whereby he argued first that DACA was flatly illegal, and then asserted that the Trump administration had ample discretion to end the program because of its policy reservations on its ends and purposes.
There is less to Ginsburg’s objection than meets the eye. Francisco was arguing the case in the alternative—first, that the program was illegal, but then if not, that the administration could end it in the same fashion it was implemented, by presidential order. In my view, the first of these grounds is correct. However powerful the case for DACA on the merits, the constitutional principle of separation of powers does not grant to the president the power to create an entire immigration reform out of whole cloth. Asking for a memo in justification for undoing that error seems most unwise. The standards here are necessarily fluid, and that inquiry invites lower courts to keep DACA in place by constantly raising the burden of proof to extreme levels.
Ironically, if this view on legality is correct, the harder question becomes whether Trump had the power to extend DACA once he came into office after he concluded that DACA was constitutionally infirm from its inception. The whole inquiry quickly enters uncharted waters, given the evident need to allow some limited time for transitions to take place. But the matter is too urgent for it to be resolved by either presidential directive or by judicial decision. Fortunately, the same option that was available in 2012 is available today: enact DACA as is for a short-term fix, and then work through the larger immigration challenges at a more thoughtful pace. The human toll is too great to tolerate more indecision, confusion, and delay.
As many as 5.7 million noncitizens voted in the 2008 election and potentially more voted in 2016, according to a new study by Just Facts, a New Jersey-based research group, drawing on information from other studies.
The study—based on data compiled from Harvard University’s Cooperative Congressional Election Study, an analysis published in the journal Electoral Studies co-authored by Old Dominion University faculty, and Census data—also provides some support for what then-President-elect Donald Trump tweeted in late November, when he asserted he won the popular vote if the fraudulent votes were deducted. The Just Facts study did not look specifically at 2016.
The study by Just Facts, which identifies its point of view as conservative/libertarian, but says it maintains independent inquiry, determined as few as 594,000 and as many as 5.7 million noncitizens voted in 2008, in the race between Democrat Barack Obama and Republican John McCain. Eighty-two percent of noncitizens who admitted to voting in a survey said “I definitely voted” for Obama.
An estimate from 2012, which the study finds to have less complete data, is between 1 million and 3.6 million noncitizens registered to vote or voted, including both the “self declared” and the “database-matched” populations.
Democrat Hillary Clinton won the popular vote over Trump by about 2.9 million votes in 2016.
Previously, an Old Dominion University professor’s analysis found that, extrapolating on a more extensive 2014 study, an estimated 800,000 noncitizensvoted in the 2016 election—falling well short of enough to affect the popular vote.
James Agresti, president of Just Facts, was cautious about stating whether this would have changed the result of the popular vote in the 2016 election. He concluded it is likely the number of noncitizen voters in the most recent presidential election was higher than eight years ago.
When asked if noncitizen voters changed the popular vote outcome in 2016, he said, “There is a distinct possibility.”
“The 3 million vote margin would be smack in the middle,” Agresti told The Daily Signal. “I don’t want to say it would. There are a lot of uncertainties. It’s possible.”
There are two ways of looking at the noncitizen voting figures for 2012, Agresti said. Based on the Harvard and Census data, between 1 million and 2.6 million noncitizens voted under “self-declared.” However, there are between 1.2 million and 3.6 million “database-matched” noncitizens who voted that year. So the full range is 1 million to 3.6 million. Because of the overlapping information, Agresti is particularly cautious about drawing conclusions here.
“Just Facts does not have all the data needed to calculate inclusive figures for the 2012 election, so these figures are undercounts,” Agresti said.
Hans von Spakovsky, a senior legal fellow at The Heritage Foundation who has written extensively about voter fraud, was not very familiar with Just Facts, but he said if the findings were true, it lends more evidence to a growing problem.
“This is just another indication of how serious the problem may be and why it is even more important to investigate the possibility of noncitizens voting,” von Spakovsky told The Daily Signal.
In May, Trump named Vice President Mike Pence to chair the Presidential Advisory Commission on Election Integrity.
The difference between the Just Facts finding and the estimate from Old Dominion University research is likely because of a different methodology, said Jesse Richman, an associate professor of political science at Old Dominion University, who did the aforementioned study that arrived at 800,000 noncitizen votes in the 2016 election.
“My impression is that the differences arise principally from the different assumptions we made about how to treat individuals for whom there was some ambiguity about whether they voted or not, e.g. individuals who said they didn’t vote but had a validated vote, etc.,” Richman told The Daily Signal in an email. “There are a variety of assumptioans one could make about how to treat those individuals, and my general impression is that this is the main thing driving the differences between our results.”
Richman’s figure was based on the 2014 study he co-authored that looked at noncitizen voting in the 2008 and 2010 elections. Richman applied the methodology from the study of those years to arrive at an estimated 800,000 noncitizen voters in 2016.
The latest arrest numbers don’t tell the whole story. As the crisis deepens, the U.S.-Mexico border is becoming increasingly volatile and dangerous.
The big border headline this week was that U.S. authorities arrested or turned away more than 144,000 people at the southwest border in May, including more than 100,000 family units and children, far exceeding previous monthly totals this year and putting us on pace for illegal immigration levels not seen in 13 years. The U.S. Border Patrol apprehended on average 4,200 people a day last month and now has more than 19,000 people in custody.
These numbers tell us the migrant crisis is deepening, despite efforts by the Trump administration and the Mexican government to contain it. But beyond the numbers is something yet more disturbing, a reality not often reflected in media coverage of the crisis: the border itself is spinning out of control.
For one thing, it has become an incredibly dangerous place for migrants. In just the past week, two migrants died shortly after being taken into U.S. custody: a 33-year-old Salvadoran man, who had a seizure within minutes of his arrest, and a 40-year-old Honduran woman, who collapsed less than a half-hour after crossing the border. Last Saturday, a transgender woman from El Salvador died four days after being released from U.S. custody. Two weeks ago, a Guatemalan teenager died at a Border Patrol station from what appears to be influenza.
Many others have died, or nearly so, trying to cross the border. Last month, an infant drowned in the Rio Grande when a raft carrying migrants capsized. On Thursday, a Guatemalan woman died in the Arizona desert after falling ill and being left behind by the group she was traveling with. On Wednesday, Border Patrol agents resuscitated a six-month-old boy after rescuing him and his mother from the river. A week ago, agents rescued a double amputee and a paraplegic after smugglers on the Mexican side threw them into the water.
As a result of migrant caravans originating in Central America, large groups continue to show up on the border. In the past eight months, Border Patrol has encountered more than 180 groups of 100 people or more, up from 13 last year and just two the year before that. The largest group, which crossed the border in downtown El Paso, was more than 1,000 people. More than 2,200 people were arrested in El Paso on Memorial Day, including a group of 430.
The borderlands have always been a hotbed of brazen criminality, but federal authorities say the volume of people now coming across illegally is sapping its ability to combat ongoing drug and human trafficking operations, which continue apace. Two weeks ago, U.S. authorities in Arizona tracked and seized an ultralight aircraftcarrying a half-million dollars’ worth of meth and fentanyl. Agents continue to find smuggling tunnels up and down the border. On Monday, a 23-year-old man, a U.S. citizen, was killed in a firefight at the San Ysidro Port of Entry in California. Afterward, U.S. Customs and Border Protection officers found two Chinese nationals hidden in the man’s truck.
As the situation deteriorates, Mexico has suddenly sprung into action—mostly with what amounts to window dressing. In response to President Trump’s threat to impose punitive tariffs on Mexican imports if the government doesn’t do more to prevent illegal immigration, Mexico has ordered 6,000 National Guard troops to its southern border with Guatemala, promising it will quickly reduce the numbers of Central Americans crossing that porous border (it won’t). Mexican authorities also arrested two organizers of a controversial activist group that’s been behind several large caravans, and on Wednesday apprehended a group of 1,000 migrants in southern Mexico who said they were headed to the United States to claim asylum.
Acting Secretary of Homeland Security Kevin McAleenan was in Guatemala last week working out a plan to assist in the tracking and interdiction of smuggling networks in that country. Dozens of DHS agents and investigators have been dispatched to Guatemala for this purpose, and according to one news report, Guatemala’s ambassador to the United States recently told a Democratic member of Congress that his country would welcome U.S. troops to help secure the northern border.
It’s hard to say where all this is leading. Mexican and American officials say they are nearing an agreement that would deport Guatemalan asylum-seekers who enter the United States to Mexico, and send Honduran and Salvadoran migrants to Guatemala, but it’s unclear if such a scheme would satisfy Trump, or survive a challenge in the courts.
What’s clear, for now, is that the crisis is entering a new and uncertain phase. As pressure mounts to do something about the sharp spike in illegal immigration, and Mexico puts pressure on criminal smuggling networks and cartels that are profiting off the crisis, we should expect more confrontation at the border and throughout Mexico, and, for those trying to get into the United States more danger and uncertainty.
by Adam Kredo • Washington Free Beacon
An Iranian citizen identified as a senior member of the country’s Basij military force was caught trying to enter the United States posing as a cancer researcher, according to multiple sources familiar with the situation who told the Washington Free Beacon that the Trump administration should begin investigating how the individual was granted a U.S. visa in the first place.
Seyed Mohsen Dehnavi, who has been identified as a member of Iran’s highly vetted volunteer Basij force, was turned away from entering the United States at Boston’s Logan Airport.
Sources familiar with the situation said that Dehnavi is billing himself as a medical researcher and was to assume residency at a Boston-based hospital. He was detained earlier this week at Logan Airport along with his family and later sent back to Iran. Continue reading
by Elizabeth Harrington • Washington Free Beacon
Immigrations and Custom Enforcement cannot account for all visa overstays due to inefficiencies in the agency, according to a new report.
ICE arrested just 0.4 percent of visa overstays it could account for, according to an audit by the inspector general.
The agency has 27 different databases used to investigate and track immigrants who remain in the country past the deadline issued on their temporary visas. The lack of a cohesive system has “produced numerous inefficiencies,” making ICE ineffective at catching visa overstays who may pose security risks, according to the audit.
“Department of Homeland Security IT systems did not effectively support ICE visa tracking operations,” the inspector general said. Continue reading
From immigration to abortion to the power of unions, the Supreme Court is entering this election year with a full plate of politically charged cases.
by Sam Baker • NationalJournal
The Court hasn’t officially agreed to hear this one yet, but most experts think it will—and that a decision will come by the end of June. That’s certainly the Obama administration’s hope; winning at the Supreme Court is the only way Obama will be able to implement his Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA, which would allow some 4.3 million undocumented immigrants to remain in the country.
A ruling for the Obama administration would allow DAPA to take effect—and Democratic front-runner Hillary Clinton has said she would stretch the policy even further. A loss for the administration, on the other hand, would vindicate Republican criticisms that DAPA went too far, and would give a Republican president a way out of the program without rolling back any legal protections himself. Continue reading
Dozens of alleged refugees have entered Germany on fake Syrian passports, which were produced using technology similar to that used to forge documents for some of the perpetrators of the Paris attacks, the German Bild newspaper reported Tuesday, citing government sources.
Last week, two French citizens posing as refugees were arrested in Austria on suspicion of having links to the November 13 Paris terror attacks. The suspects, of Algerian and Pakistani descent, were allegedly using fake Syrian passports and are believed to have entered Austria with some of the Paris attackers in October. Individuals posing as refugees entered Germany using passports made by the same means as those found on the suspects arrested in Austria.
“They contain the same features of forgery,” one of the sources told the German media outlet.
Stolen genuine documents were so intricately altered by counterfeiters that the forgery was not detected immediately, meaning those who entered the country on fake passports have not yet been found, according to the newspaper. Continue reading
By Nayla Rush • Center for Immigration Studies
I attended USCIS’s Asylum Division Quarterly Stakeholder Meeting last week. It was led by John Lafferty, chief of the Asylum Division. Those present were, for the most part, USCIS staff and immigration lawyers in charge of representing asylum seekers and refugees.
Here are a few things I learned:
The Asylum Division suffers from a high staff turnover. Loss of trained staff means recruiting and training others to do the job. It is also understaffed. Officers have a hard time meeting quotas set by the president.
In 2000, there were only 5,000 asylum cases and no backlog. There are now 120,000 cases, hence the backlog. Continue reading