POV: Taking Stock of Trump’s Immigration Proposals

Photo by Vladone/iStock

Changes to United States immigration policy were central to Donald Trump’s presidential campaign. And if developments in the weeks following the election are any indication, he intends to make them a cornerstone of his presidency. Trump’s campaign trail rhetoric promised a crackdown on immigration, but it was short on specifics. Since his election, certain of his spokespeople have walked back some of his hard-line language, while Trump himself has been less circumspect and has chosen close policy advisors with documented anti-immigrant agendas.

On the day of Trump’s inauguration, here are four of the president-elect’s policy proposals, the rhetoric on these issues coming from Trump and those close to him, and the realities of implementing his proposed policy changes.

Ending Deferred Action for Childhood Arrivals

Trump made one of the rallying cries of his campaign a pledge to rescind Deferred Action for Childhood Arrivals (DACA), telling Meet the Press in August 2016 that if he is elected, “[t]he executive order gets rescinded” and DREAMers “have to go.” In rescinding DACA, Trump would be undoing the exercise of prosecutorial discretion that President Obama extended to DREAMers: successful, undocumented young people who were brought to the United States by their parents as children. These young adults are, but for their undocumented status, emblematic of the American dream—though their immigration status had, until Obama’s announcement in 2012, prevented them in many cases from attending college or enlisting in the military. As of June 30, 2016, U.S. Citizenship and Immigration Services, the immigration benefits agency, had approved close to 750,000 DACA applications.

As easily as President Obama used executive action to grant DACA, Trump could, in fact, undo it. Indeed, DACA is not a matter of right, but of discretion and executive authority. Trump’s power to revoke it is clear, but what remains less certain, is how far he will go and on what timeline. Will Trump’s actions—which are likely to be one of his first symbolic gestures toward the anti-immigrant right who elected him—be simply a refusal to renew the program, allowing the employment authorization documents granted as a part of DACA to remain valid until their expiration? Or, as he can do by regulation, will the new president terminate employment authorization immediately, since the conditions under which it was granted are changing?

Trump could go one step further, placing the DACA young people who came out of the shadows into removal proceedings, an especially cruel move considering these DREAMers were assured that providing their information to the government would not result in their removal, except in exceptional cases. South Carolina Republican Senator Lindsey Graham is said to be drafting legislation that would offer protection to the young people who have been granted DACA since 2012. It remains unclear what form Trump’s DACA destruction would take. Last month, he told Time magazine that, “we’re going to work something out that’s going to make people happy and proud” with regard to DACA recipients. But while his rhetoric may have softened, the immigration hardliners he has placed in positions of trust, Kansas Secretary of State Kris Kobach among them, do not offer great reassurance. In his confirmation hearing earlier this month, attorney general nominee and Sen. Jeff Sessions made clear that he would support the repeal of DACA, saying that he would have “no objection” to abandoning DACA altogether.

Muslim Registration

When asked whether Muslims should be required to register with the government, candidate Trump responded, “absolutely.” Kobach, one of his closest policy advisors, has subsequently suggested reinstating a controversial 9/11-era program targeting Muslim men, an effort that was disbanded after coming under fire from civil rights groups and proving to be wholly ineffective. Recently, Trump’s PAC cochair Carl Higbie told Fox News that Japanese internment camps provided “precedent” for such a policy. In December, following a terrorist attack in Berlin, Trump was asked whether he still intended to set up a Muslim registry, to which he responded, “You know my plans.” A spokesperson later clarified that he was referring to plans to bar immigrants coming from countries that had attacked the US or its allies, many of which are Muslim-majority nations. During his confirmation hearing, Sessions chimed in on this issue, stating clearly that he opposes a Muslim immigration ban. Nevertheless, it’s worth noting that as a senator, Sessions was one of just four Republicans to oppose a December 2015 amendment that would have reaffirmed that the US does not engage in religion-based discrimination when it comes to immigration. If confirmed as attorney general, Sessions would have tremendous power over immigration decisions.

Could a Trump presidency reinstate some kind of special registration program? The National Security Entry-Exit Registration System (NSEERS), a controversial special registration program established by the administration of George W. Bush, required all boys and men over 16 from 25 majority-Muslim countries to register, and, in some cases, to subject themselves to special interrogations and regular check-ins with the government. It was ended in 2011, but the regulatory framework necessary to its implementation remained on the books. Effective December 23, 2016, the Obama administration announced it was, “removing outdated regulations pertaining to the National Security Entry-Exit Registration Systems (NSEERS) program, with an immediate effective date.” In addition to legal rights challenges—indeed the program led to increased racial and religious profiling—there were practical considerations that made it counterproductive. Most notably, NSEERS did not result in a single terrorism conviction and, according to rights groups, actually impeded efforts to fight terrorism by destroying law enforcement relationships with immigrant communities.

Expanded Deportation

In setting out his plans for increased detention and deportation of undocumented “criminal aliens,” Trump recently promised, “[w]hat we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers.” He estimated this number at “2 to 3 million.” Taking advantage of fuzzy math, Trump landed on a number that far exceeds the actual population of noncitizens deportable for crime, of which there are currently 1.9 million, only 43 percent of whom are undocumented. The rest have lawful status, many of them green card holders with strong ties to their communities.

Notwithstanding his mathematical misunderstandings, Trump’s plans for expanded deportation face both logistical and legal challenges. To begin with, the Obama administration has been no slouch when it comes to increased deportation—indeed, between 2009 and 2015, the Obama administration deported more than 2.5 million people. That’s more deportations than every other administration in the 20th century, combined. The Obama administration favored a similar “criminals first” mentality.

And yet, Trump’s proposals are more sinister. They not only continue the policies of the Obama administration, they also threaten to undo the few due process protections that currently exist by statute for immigrants. According to the Washington Post, “[u]nder Trump’s proposal, a person arrested by police—regardless of how serious the crime is, without knowing whether they are present illegally—would be held in jail, and their removal proceeding would begin without due process.”

This approach poses both constitutional and practical problems. First of all, those who have been admitted to the US have a constitutional right to due process—a fair hearing—and by statute the law provides a hearing for even those who have entered the country unlawfully. To roll back these rights would require an act of Congress, which would then very likely face a successful constitutional due process challenge in court. On a practical level, the scale on which Trump proposes to increase deportation would substantially overwhelm the already struggling immigration court system. Presently, there is a backlog of more than 500,000 pending immigration removal cases. To increase deportation to this degree would require significant additional resources, not just to increase the number of immigration judges and court staff, but also to expand detention capacity for those immigrants apprehended and facing removal.

Changes to Birthright Citizenship

The 14th Amendment was ratified to the Constitution in 1868, roughly 11 years after the landmark Supreme Court decision Dred Scott v. Sanford, which denied citizenship to African Americans, whether free or enslaved. The amendment reads, in its relevant part, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The amendment withstood a legal challenge in the 1898 case of Wong Kim Ark, born in the US to Chinese parents. In that case, the Supreme Court held that notwithstanding the status of his parents, Wong Kim Ark was a United States citizen. Today, the 14th Amendment is widely understood, and accepted, to mean that all persons born in the United States, regardless of the immigration status of their parents, are considered to be citizens of the United States.

On the campaign trail, then candidate Trump vowed to end birthright citizenship, calling it a “magnet” for unlawful immigration. In 2009, Trump’s vice president, Mike Pence, cosponsored the Birthright Citizenship Act, which would have denied US citizenship to a child born to undocumented parents. As president-elect, Trump’s immigration agenda, though vague on specifics, did not directly address this issue. If he, or Pence, were to push this idea, they would encounter several hurdles, principally the Constitution. To end birthright citizenship would very likely require a constitutional amendment, which would require a degree of cooperation and agreement among two-thirds of the members of Congress and three-fourths of state legislatures or an unprecedented constitutional convention called for by two-thirds of state legislatures. Neither consensus seems probable.

In addition to constitutional obstacles, there are practical considerations to ending birthright citizenship. The nonpartisan Migration Policy Institute has projected that by 2050, ending birthright citizenship for future children would increase the undocumented population to 16 million if citizenship were denied to children whose parents are both here illegally. If the law remained the same, that population would hold steady at about 11 million. Without citizenship, millions of young people—American in every other way—would be unable to work lawfully and unable to meaningfully participate in their economies and communities.

Though some of Trump’s rhetoric may have softened since his election, the previous statements and actions made by him, his vice president, and his close policy advisors create ample room for genuine concern among immigrant communities and their advocates.

Sarah Sherman-Stokes, a School of Law clinical instructor in the Immigrants’ Rights Clinic, can be reached at sstokes@bu.edu.

“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow at barlowr@bu.edu. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.