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How Would Immigration Policy Be Decided Under President Trump? By Roger Algase

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This is not a political blog, and I will leave it to the pundits and politicians to opine on whether the results of the March 1 "Super Tuesday" primaries brought Donald Trump closer to becoming the president of the United States or not, or whether there is any chance left of stopping him from becoming the Republican nominee.

Anyone who is interested in that kind of speculation can easily find it in dozens, if not hundreds, of other places on the Internet. Nor it my intention to speculate on which of Trump's campaign promises concerning immigration he will try to keep if he become president.

How many unauthorized Latino and other minority immigrants would he actually deport? Will he really build the Wall and make Mexico pay for it? How long would an attempt to impose his ban on entry by Muslims continue?

Would the Muslim ban include American citizens returning from overseas, in direct violation of the free exercise of religion guaranteed by the First Amendment to the Constitution?

If anyone other than Trump himself were asked these questions, the only possible answer would be the same one that Tevye gave in the iconic Broadway musical "Fiddler on the Roof", namely:

"I'll tell you - I don't know."

Very possibly, Trump himself doesn't know what he would do, and in any event, he has frequently praised the perceived advantages of being unpredictable. Again, this kind of speculation can easily be found on many sites other than this one.

My concern in this post is not with the details of which immigration policies might or might not be carried out under a Trump presidency, but with how the decisions about which policies to adopt would be made.

Up to now, and ever since the time of Supreme Court decisions upholding the Chinese exclusion laws beginning in the 1880's (to be brought back more than 130 years later in the form of a Muslim exclusion law under President Trump?), the legal doctrine concerning enacting and enforcing immigration laws and regulations has been that these are the province of the "political" branches of the government, i.e. Congress and the Executive, with little or no interference from the judicial branch, i.e. the courts.

Leaving aside for now the issue of the role of the courts in reviewing immigration policy, which is arguably greater than it may have have been during the dark period of racial prejudice in our history that gave rise to the Chinese exclusion laws (but see US v. Wong Kim Ark, 1898), where the Supreme Court invalidated an action of the executive branch in excluding the US-born child of Chinese citizen parents as contrary to the Constitution), the main focus today is on the balance between the two political branches of the government in making and executing laws and regulations relating to immigration.

Without any doubt, the ongoing case of Texas v. US, which the Supreme Court has now agreed to review, constitutes a major test of this balance, involving the extent to which the president can determine immigration policy by executive action without the consent of Congress.

But what happens if America one day has a president who believes that the will of the American people regarding immigration (among other policy determinations) resides entirely in his own person, and that Congress is either irrelevant or just another inconvenient opponent to be crushed or eliminated?

Is such a thing possible in America? There may be a hint of what the answer could be under a Donald Trump presidency in the Huffington Post's report concerning Trump's reaction on March 1 to criticism from his fellow Republican, House Speaker Paul Ryan, over Trump's perceived lack of forthrightness in disavowing the support of David Duke, the former Ku Klux Klan leader.

The Huffpost reports their exchange as follows. First, Ryan:

"If a person wants to be the nominee of the Republican party, there can be no evasion and no games...They must reject any group or cause that is built on bigotry."

And here is Trump's answer:

"Paul Ryan, I'm sure I'm going to get along great with him. And if I don't, he's going to have to pay a big price. OK?"

See:

http://www.huffingtonpost/com/entry/...b03260bf7897a9

To anyone who has been paying even the slightest attention to the presidential campaign so far, it will be obvious that this is not the first threat of retaliation (or, in the case of protesters at his rallies actual violence that he has encouraged his security people to use) that Trump has made against anyone who disagrees with or opposes him.

But to engage in this kind of bullying and threats against a well-regarded, highly respected Speaker of the House from his own party (who, it will be remembered, is himself third in line for the presidency), is, arguably, taking the idea of government by intimidation to an entirely new, and very troubling, level.

What could government under a president who combines a belief in his own infallibility as the sole representative of the will of the people with a willingness to govern by raw power be like? It could be called many things, but democracy would not be one of them.

Andrew J. Bacevich writes the following in salon.com on March 2:

"Should Trump or a Trump mini-me ultimately succeed in capturing the presidency, a possibility that can no longer be dismissed out of hand, the effects will be even more profound. In all but name, the United States will cease to be a constitutional republic. Once President Trump inevitably declares that he alone expresses the popular will, Americans will find that they have traded the rule of law for a version of caudillismo."

See:

http://www.salon.com/2016/03/02/the_...ican_democracy

If Trump is elected, could Congress become cowed and intimidated into total irrelevance, and immigration laws and policies be determined entirely by presidential decree? And if this were to happen, would there be any greater respect or deference for immigration decisions by the US Supreme Court, or would these too be brushed aside as "unrepresentative" opinions by "a bunch of unelected lawyers wearing robes"?

America might soon have a chance to find out.
_________________________________
Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from many different parts of the world and diverse ethnic and religious backgrounds obtain work visas and green cards.

Roger's email address is algaselex@gmail.com




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Updated 03-09-2016 at 02:33 PM by ImmigrationLawBlogs

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Comments

  1. Pipo's Avatar
    President Trump will definitively need to issue Executive Orders (and not "Executive" Actions, in reality Administrative Actions, as the ones issued by the current administration) in he pretends to implement effective changes on immigration without Congress' assistance.

    However, an EO that requires any sort of compulsory mass deportation of undocumented immigrants will indeed elicit social unrest in many parts of this country like never seen before - and Law Enforcement nor the National Guard (and the US Armed Forces by extension) are prepared for that scenario. Most likely, Mr. Trump has already been advised on the negative repercussions of this issue and his most recent comments tend to indicate that he's already disregarded that idea.

    Donald Trump can rescind DACA and DAPA (assuming the Supreme Court rules in favor of the latter) but the impact on those actions will create administrative problems to the agencies involved in the alien registration.

    Let's not forget that Trump's business ventures operating overseas are extremely vulnerable to any sort retaliation by governments whose nationals may negatively be affected by Donald Trump's actions. Additionally, US citizens comfortably living in Mexico as permanent residents (about 5 million plus retirees and senior citizens) could also be affected as a result of President Trump's erratic policies on immigration.

    Sir Issac Newton's Third Law of Motion summarizes the ongoing immigration dilemma created by Donald Trump:
    "Lex III: Actioni contrariam semper et ?qualem esse reactionem: sive corporum duorum actiones in se mutuo semper ess e ?quales et in partes contrarias dirigi."
    (Law III: To every action there is always an equal and opposite reaction: or the forces of two bodies on each other are always equal and are directed in opposite directions).
  2. Nolan Rappaport's Avatar
    I don't understand. It seems to be president Obama who thinks Congress is irrelevant, not Trump. President Obama gave temporary lawful status and work authorization to otherwise deportable aliens. If Trump decides to initiate removal proceedings against the 11 million undocumented aliens in the US, he will be carrying out the law as written. Moreover, once alienage is established, the burden of proof in removal proceedings is on the alien, not the gov't. See section 291 of the INA, the pertinent part of which states, "In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, .... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law."

    Of course, the threat of putting 11 million aliens in removal proceedings is pure fantasy or a bluff if the person making the threat actually thinks it is possible. But lets keep the facts straight. Trump would be carrying out the law if he deported every alien who is in the United States illegally, not making it up in defiance of congress. As for congress, it is hypocritical for the republicans to whine about Obama's failure to enforce the law when they have NEVER provided the funding and other resources needed for any president to mount a large-scale, nationwide enforcement effort. ICE has only 6,000 officers for the entire country, compared to 34,000 uniformed officers in New York City alone.
  3. Pipo's Avatar
    Quote Originally Posted by Nolan Rappaport
    I don't understand. It seems to be president Obama who thinks Congress is irrelevant, not Trump. President Obama gave temporary lawful status and work authorization to otherwise deportable aliens. If Trump decides to initiate removal proceedings against the 11 million undocumented aliens in the US, he will be carrying out the law as written. Moreover, once alienage is established, the burden of proof in removal proceedings is on the alien, not the gov't. See section 291 of the INA, the pertinent part of which states, "In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, .... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law."

    Of course, the threat of putting 11 million aliens in removal proceedings is pure fantasy or a bluff if the person making the threat actually thinks it is possible. But lets keep the facts straight. Trump would be carrying out the law if he deported every alien who is in the United States illegally, not making it up in defiance of congress. As for congress, it is hypocritical for the republicans to whine about Obama's failure to enforce the law when they have NEVER provided the funding and other resources needed for any president to mount a large-scale, nationwide enforcement effort. ICE has only 6,000 officers for the entire country, compared to 34,000 uniformed officers in New York City alone.
    President Obama's so-called "Executive" Actions (and NOT Executive Orders, as wrongly portrayed by mainstream media and Obama's detractors) on immigration are perfectly legal, and his administration is not thinking that "Congress is irrelevant" as you erroneously assume (a fallacious argument indeed).

    Seems also that you are not aware that in legal terms the United Sates of America is currently in a State of War (Public Law 107-40 - Authorization for Use of Military Force (AUMF): http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf).

    During times of war and under the grounds of National Security, the Executive Branch is granted extraordinary powers to govern by decree if necessary; moreover, constitutional rights can be suspended at any given time and without notice if the Sovereign deems imperative under the legal doctrine called State of Exception.

    President Obama's Administrative Actions dealing with the ongoing immigration dilemma are mediocre and not decisive, since the courts were allowed to have a say (viewed strictly as a matter of jurisprudence). Regrettably and questionably, Barack Obama did not act like a true statesman issuing EOs that would have allowed unlawfully present immigrants to gain some sort of legal status in this country: non-reviewable actions covered under the umbrella of the State of Exception (DACA and DAPA do not qualify under this legal doctrine).

    End of story.
  4. ImmigrationLawBlogs's Avatar
    If Trump only cares about carrying out the law, as Nolan contends in his above comment, why has Trump spoken out in favor of torturing people who might be suspected of terrorism and murdering their innocent relatives, which not only violates US and international law but also arguably constitutes a war crime? Why does he want to "open up" the libel laws, i.e. remove or weaken First Amendment protections for any one who criticizes him?

    If Trump cares about the law, why has he never clarified his proposal to ban all Muslims from entering the US to exclude Muslim US citizens from the ban, since their religious freedom is protected by the Constitution without question? Instead, Trump's spokesperson said that the ban would apply to "everybody"? What law would allow Trump to close down mosques or require special ID's for Muslim US citizens?

    Why has Trump reveled in promoting violence against protesters at his rallies and threatened that any politician or campaign contributor who opposes him will "pay a very high price"?

    And how does Trump propose to carry out 12 million deportations? Would he follow legal processes and bring everyone in front of an immigration judge, which could take years, if not decades? Or would he use his special "Task Force". which even Senator Cruz, who also favors mass deportation, has referred to as "Jackboots", i.e. Nazi storm troopers (look it up in the dictionary) to round millions of people up in midnight raids and turn America into a vast concentration camp with primarily Latino, Asian and black inmates before summarily expelling them from America, just as Jews were forced to leave Germany "according to law" in the 1930's?

    Some of the above questions are dealt with in an excellent March 2 article by Ruth Marcus in the Washington Post called:

    I was wrong: President Trump would be way scarier than President Cruz

    (Sorry, I cannot find the link - please go to the WP's home page.)

    Anyone who thinks that Donald Trump as president would consider himself bound by any laws whatsoever except for his own decrees should read this article, and should also pay more attention to Trump's own statements and actions.

    These are not the statements and actions of someone who believes in democracy. They are more consistent with a different form of government which reportedly derived its name in Italy in the early 1920's from the symbolic bundles of rods that were handed over to officials assuming office in ancient Rome.

    According to the historian Dio Cassius, writing in Greek around the beginning of the 3rd century A.D., the custom of bestowing these rods (fakeloi in Greek, or fasces in Latin) had been "handed down from the earliest times" (apo to panu archaiou epoieise).

    Roger Algase
    Attorney at Law
    Updated 03-09-2016 at 02:34 PM by ImmigrationLawBlogs
  5. atifkhan's Avatar
    Personally I am against Trump policy
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