Mimesis Law
18 April 2021

Trump Has Bill Clinton To Thank For Broad Immigration Powers

January 31, 2017 (Fault Lines) – The weekend headlines were awash with hyperbole. A U.S. Senator was brought to tears. Over the weekend, the ACLU raised $24 million, which is six times its yearly average. Foreign countries are considering banning U.S. travelers. Federal courts issued nationwide injunctions, which were once hated by progressive-minded folks.

And with the never ending need to fill time on cable news and twit opinions about the latest event, you’d think we’re on the brink of a disaster of Biblical proportions. Human sacrifice, cats and dogs living in harmony together—mass hysteria!

You see, Trump instituted a travel ban affecting seven Muslim-majority countries. So, now is not the time for calm, measured thinking. Instead, identify President Trump as Nazi—again, but really, really mean it this time. Call this a ban on Muslims, even though it’s not. And protest, yes, that’s the ticket.

The interwebz and social media is filled with less-than-amateur lawyers typing in ALL CAPS about how illegal the executive order is, and how we’re on the fast track to Nazi Germany or some other fascist state, though rarely make a comparison to a communist state. The panic is all the more curious because this sort of action is in line with Trump’s general plan. In any event, most of this talk is wrong. Even those informed folks, who think Trump’s order is malevolent, still acknowledge there is a lawful path to get to where the President wants to go:

So yes, the order is malevolent. But here’s the thing: Many of these malevolent objectives were certainly achievable within the president’s lawful authority. The president’s power over refugee admissions is vast. His power to restrict visa issuances and entry of aliens to the United States is almost as wide. If the National Security Council had run a process of minimal competence, it could certainly have done a lot of stuff that folks like me, who care about refugees, would have gnashed our teeth over but which would have been solidly within the President’s authority.

True, there are some peripheral legal issues about whether this religious-looking ban is permitted by statute or is prohibited by the First Amendment. But constitutional avoidance has been the guiding doctrine of the Roberts Court, when faced with tough constitutional questions. So, don’t hold your breath. The bottom line is that the essence of the executive order is probably legal because Trump is availing himself of laws passed during the Clinton era.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was passed during our last productive period of bipartisanship. Remember this, along with the Crime Bill, whenever someone touts the glories of bipartisanship. Originally there were two bills, one for illegal immigration and one for legal immigration. Eventually, the bill dealing with legal immigration died, but some of its provisions ended up in the IIRIRA.

The bill made the commission of nearly any crime the basis for removal (deportation). The two main categories were crimes of moral turpitude and aggravated felony. In the case of the former, two convictions would result in removal, no matter how trivial the harm might have been. Regarding the latter, the definition does not strictly require the underlying conduct be a felony, and the use of aggravated is misleading, as the mere commission of the crime is sufficient.

The offenses that qualify for removal are so numerous that in recent years ICE administratively set priority targets, while not bothering to even issue detainers on non-priority targets. As Fault Lines contributor Mario Machado wrote yesterday, Trump has made every non-citizen an enforcement priority.

Criminal records are enough to keep asylum seekers out of the U.S. Also, it instituted the waiting period outside the U.S. for those unlawfully present in the U.S. at least six months. In other words, overstay your visa, and you’re barred from returning for some period of time. The IIRIRA made it more difficult to come to the U.S. to work, requiring more documentation.

In addition, the IIRIRA promised more enforcement and a construction of fence along the border. And immigration-related offenses were added to RICO. The IIRIRA made due process much less exacting compared to many other areas of the law, including permitting summary removal decisions. You may remember too that the IIRIRA forbade colleges from charging in-state rates for the undocumented. a/k/a illegals, in the common parlance of the day.

For their part, the ACLU supported repealing it during the Obama administration:

Today’s explosion in detention is fueled in large part by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). * * * But in truth, these laws punish immigrants far out of proportion to their crimes, subjecting thousands of legal immigrants to detention and deportation every year for old or insignificant offenses. The predictable result has been a boom in detention in the 15 years since IIRIRA’s passage — from 6,280 beds in 1996 to the current daily capacity of 33,400 beds, or 363,000 people detained in FY2010 — with taxpayers footing the bill.

Some legislators later expressed regret, and there were some attempts to amend the bill. But after 9/11, there wasn’t much political interest in making it easier for folks to get into the U.S. Thanks to Clinton and the Republican Congress, President Trump has plenty of ammunition for just about whatever crackdown and mass deportation he wants to do.

Moreover, immigration is an issue that Congress usually has to be pulled kicking and screaming into addressing. So, naturally, they assign the Executive Branch broad authority to deal with that thicket instead. One of those provisions is at issue here:

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.

The problem with broad grants of authority with no objective guidance is that Congress can’t do much about its exercise. And the rest of us can do even less. Separation of powers, like federalism, is an idea that matters in the lean times. But in the times of plenty, they are too often seen as obstacles to be overcome for the good of everyone.

We want the President to pick our insurance for us, but not pick which aliens can’t enter the country. To the simple-minded, there is an obvious difference that need not be explained with other than appeals to emotion. But the justification of expansion of executive authority in one area suggests the next expansion. And nearly unlimited grants only further compound the problem.

“We just want to help people” is a slogan, not a political philosophy. It’s vapid enough to make you feel secure in giving the President a trillion-dollar slush fund to protect jobs, Wall Street executives, or something, and it’s vapid enough to allow the President to refuse entry to classes of aliens to help protect Americans. Careful, thoughtful policy making is frequently murdered in the name of partisanship and expediency.

You can answer small questions slow and well, or you can answer large questions fast and poorly. The power that President Trump has at his disposal is entirely due to fast and poor decision making on complex questions. Ultimately, we cheered when our federal overlord did the things we wanted, not caring that making Sulla dictator would make it easier for Caesar to claim the office for life. But now many have had the realization that what you thought you wanted isn’t what you wanted.

Remarkably, many still see it as a personality problem, that is, “if only Hillary, Kasich, or Romney had won.” The essence of the problem is not the person; it is the exercise of the power itself. If it’s a power you wouldn’t want placed into the hands of your enemy, then it’s probably not a power you’d want anyone to have, especially unfettered. But soon enough there will be demands that the President do something about health care, internet porn, internet gambling, off-shoring, internet speeds, and so on. And we’ll be certain again that everything would be better if we elected the right kind of Caesar.

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  • Greg Prickett
    31 January 2017 at 12:05 pm - Reply

    The problem with the executive order (EO) is that Trump overstepped, and implemented procedures to deport legal permanent residents (LPRs). He can’t do that, because Congress established the ground for removal in § 1227 and the process for removal in § 1229a. The President cannot override existing legislation, and LPRs have already entered the United States after having been throughly vetted. He can’t use his EO to sidestep the requirements of the law on LPRs, and four or five federal judges have agreed. I’m not aware of any that have upheld the EO as of yet.