Andrew R. Arthur, Center for Immigration Studies, November 14, 2019

Normally, I focus on individual immigration issues.

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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.

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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.

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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.

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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.

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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.

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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.