Does the United States Even Have an Immigration Policy Anymore?

Caught between Scylla and Charybdis

By Andrew R. Arthur on November 14, 2019

Normally, I focus on individual immigration issues — sanctuary policies, DACA, court decisions, that sort of thing. In economics, they refer to this as the "micro level". We have reached a point, however, where the entire immigration system is unraveling. The laws are still there, but on the "macro level" there is no immigration policy that is commonly agreed upon in our federal republic. That is a problem, and one that our leaders need to address before we face a crisis for which the solutions are worse than the problems.

In framing this problem, it is important to identify our "leaders". The president is plainly one, and "Congress" writ large is another. Increasingly, however, appointed but unelected judges now also consider themselves leaders who are driving our immigration policy, largely by impeding the actions of the executive branch.

Importantly, Congress gets to set the rules for immigration. In the 1889 "Chinese Exclusion Case", the Supreme Court held:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.

Sixty-four years later, in Galvan v. Press, the Court refined this concept:

As to the extent of the power of Congress under review, there is not merely "a page of history," ... but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. ... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]

As the excerpt from Galvan above shows, although Congress makes the rules, the executive branch plays a crucial role in the enforcement of the laws that Congress has established relating to immigration. In the 1950 case, Knauff v. Shaughnessy, the Supreme Court held:

[T]he decision to admit or to exclude an alien may be lawfully placed with the President, who may, in turn, delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.

Congress has set very specific laws relating to the admissibility of aliens (found at section 212 of the Immigration and Nationality Act (INA)), and their removability (found in section 237 of the INA), and has also given the executive branch significant additional authority to bar the admission of aliens. For example, section 212(f) of the INA states:

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.

In addition, Congress has conveyed to the executive branch broad power to bar both the entry of aliens to and the departure of aliens from the United States. Specifically, section 215(a) of the INA provides:

Unless otherwise ordered by the President, it shall be unlawful-

(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.

Congress has also, for example, given the executive branch the power to grant, and terminate, temporary protected status (TPS) to nationals of designated foreign states in section 244 of the INA, even aliens who are present illegally.

A review of these authorities reveals that aliens are entitled to enter and remain in the United States only according to the stringent standards in the INA. And that Congress can give, and has given, the executive significant leeway in applying those standards. Theoretically, at least.

It hasn't worked that way in practice. Courts have attacked initiatives premised on the president's authority under sections 212(f) and 215(a) of the INA, most prominently in the so-called "travel ban cases". Presidential Proclamation 9645 (PP9645), "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats", relied on this authority to limit (with exceptions and waivers), the entry of nationals of certain countries under certain visa categories in the interests of national security.

Both the Court of Appeals for the Fourth Circuit and the Ninth Circuit, however, blocked implementation of portions of that proclamation before the Supreme Court stepped in and held:

By its terms, [section 212(f) of the INA] exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with "ample power" to impose entry restrictions in addition to those elsewhere enumerated in the INA. ... The Proclamation falls well within this comprehensive delegation.

As for the executive's authority to terminate TPS, a review of the website of U.S. Citizenship and Immigration Services (USCIS) reveals that courts have enjoined attempts to terminate TPS for Haiti, Sudan, Nicaragua, and El Salvador, in cases that also affect the administration's termination of TPS for Honduras and Nepal.

With respect to the courts' actions against Trump administration policies generally, one headline in the ABA Journal says it all: "4 federal judges rule against Trump on immigration issues in 1 day".

And while Congress may have written the laws, they have fairly consistently pushed back against the administration's attempts to enforce them. Rather than limit the administration's power in section 212(f) of the INA to issue proclamations like PP9645, the House held a hearing captioned "Oversight of the Trump Administration's Muslim Ban". Rather than providing the administration with $5.7 billion to erect 234 miles of barriers along the Southwest border to impede the illegal movement of migrants and drugs, and allow the Border Patrol to use its limited resources more effectively, Congress provided just "$1.375 billion for 55 miles of bollard fencing," and even that was subject to significant limitations on where and how those barriers could be erected. And don't even get me started (again) on how Congress on the one hand complained about the fact that migrant children were being detained in Border Patrol stations and processing centers while at the same time refusing to fund the Department of Health and Human Services shelters that Congress required (for whatever reason) those children should otherwise be sent to.

Sen. Bernie Sanders (I-Vt.) complains that "President Trump has turned Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) into a renegade detention and deportation force," while at the same time the administration last fiscal year deported fewer aliens (and a higher percentage of criminals) than the Obama administration did in FY 2011. Not to be outdone, Sen. Elizabeth Warren (D-Mass.) is threatening (if she is elected president) to suspend deportations in order to get "comprehensive immigration reform" (read "amnesty"). Note to both: If you want to change the immigration laws, you actually currently have a job that would allow you to do just that.

Rep. Lucille Roybal-Allard (D-Calif.) has a link on her official webpage telling aliens what to do in case ICE shows up at their houses or workplaces (including the helpful hint: "Don't say where you were born or how you entered the U.S."). "So what?" you say, "She is just one of 435 House members." Did I mention that she is the chairwoman of the House Homeland Security Appropriations Subcommittee, which decides how much money ICE and CBP get each year, a position so powerful that she is known as a "cardinal"? No wonder those agencies lack the funding to do the job Congress told them to do.

Rather than having the political guts to actually put themselves out there to work with a president they plainly hate to change the immigration laws they don't like (which might actually involve some compromise on their parts), members of Congress prefer to employ straw men and canards to criticize what little immigration enforcement is actually occurring and bleed the enforcement agencies for funding.

I would say that our nation's immigration policy is a rudderless ship, but it plainly has a rudder, and a pilot at the tiller attempting to follow the course Congress has set for him. Between the Scylla of the courts and the Charybdis on Capitol Hill, however, it is tough sailing, indeed.

Topics: Politics